The Receiver Chapter – Chapter 2

Table of Contents

• The framework of tort law and the primary categories of damages
• The three aspects: payment, safeguarding, and prohibition
• Sources for the prohibition of property-caused damage and the difficulty of finding the “expected” source
• Hints in the Talmud to a prohibition against creating a damaging hazard, and the language of punishment
• The She’iltot and the Levush: deriving the prohibition from the verses about payment, and the dependence between prohibition and payment
• Non-overlap between the scope of the prohibition and the scope of liability for payment
• The cause of action in property-caused damage: failure to guard, or “your property caused damage”
• Tosafot Yom Tov and Rashi on “I made its damage possible”
• Even HaAzel: formulation of the inquiry and a practical difference in a case where someone else did the guarding
• The burden of proof: Pnei Yehoshua and Chazon Ish, and the criticism of making it depend on the conceptual inquiry
• The Vilna Gaon’s interpretation of “the damager is liable” and the tendency toward liability from the damage itself
• Inciting a dog, and the suggestion that the liability “passes” from the property to the owner
• An intermediate proposal: two jointly obligating factors, not an either-or
• Rabbi David Povarzky: a proof from the prohibition against causing damage, and its rejection
• Conclusion and direction for what comes next

Summary

General Overview

This lecture continues the introduction to tort law and distinguishes between a person who causes damage and property that causes damage; between the duty to compensate, the duty of safeguarding in the legal sense, and a separate prohibitory layer that does not necessarily overlap with monetary liability. It examines the primary categories of damages and their main exemptions, the dispute over whether half-damages for a non-habitual ox are compensatory or a fine, and the ruling that it is a fine. It then moves to the question of the source of the prohibition against causing damage through one’s property, and whether it can be derived from the verses about payment or from general sources such as “love your neighbor as yourself” and “do not place a stumbling block.” Later, the lecture presents the later authorities’ conceptual inquiry into what the cause of action is in property-caused damage: is it negligence in guarding, or the very fact that it is one’s property? Proofs, practical ramifications, and criticisms are brought, leading to the suggestion that the liability may arise from a combination of both factors together, without a strict dichotomy.

The framework of tort law and the primary categories of damages

The law distinguishes between a case where a person harms another person—in which case he pays five categories: damage, pain, loss of livelihood, medical expenses, and humiliation—and a case of property that causes damage, where the main discussion is that a person’s property usually damages someone else’s property. The Mishnah lists four primary categories of damages: pit, fire, and ox; and under ox there are horn, tooth, and foot. Under horn there are the categories of non-habitual and habitual, though these are not two separate primary categories but one category whose rule is that for the first three incidents one pays half-damages. Jewish law rules that half-damages for a non-habitual ox are a fine, because ordinary oxen are presumed to be guarded, and therefore, strictly speaking, there would have been grounds to exempt entirely; they impose half-payment only to encourage guarding. The lecture also discusses unique exemptions, such as with fire there is an exemption for hidden items, with a pit there is, according to Jewish law, an exemption for damage to people and vessels, with tooth and foot there is an exemption in the public domain, and with a non-habitual horn there is half-damages for the first three incidents.

The three aspects: payment, safeguarding, and prohibition

A three-layer division was presented in tort law: the duty to compensate the injured party, the duty of safeguarding in the sense of a legal cause of action in Choshen Mishpat, and a separate prohibitory layer in the sense of Yoreh De’ah—a prohibition against causing damage or allowing one’s property to cause damage. The claim is that the legal duty of safeguarding is not necessarily the substance of the prohibition itself, because there may be a case of prohibition without a basis for legal recovery, and a case of legal recovery without prohibition. It is emphasized that the verse “and its owner did not guard it” can be interpreted as a condition that creates a right of action for payment, and not as a prohibition defining an offense.

Sources for the prohibition of property-caused damage and the difficulty of finding the “expected” source

The Yad Ramah suggests a source for the prohibition based on “love your neighbor as yourself” or “do not place a stumbling block before the blind,” and the emphasis is that this is a prohibition that does not itself generate a monetary claim, but belongs to the realm of proper conduct toward another person. The claim is that these sources do not necessarily cover every case; and in general, the sheer number of proposed sources—from lost property, “you shall greatly guard your souls,” “do not stand idly by your neighbor’s blood”—highlights that there is no single, natural, obvious source. Another possibility is also raised, to connect it to the commandment of laws—“judges and officers you shall appoint for yourself”—but that is seen as focusing more on public order than on a private prohibition. In Minchat Asher, the argument is brought that there is a prohibition based on simple reasoning, and the question is discussed whether this means a prohibition against causing damage, or a prohibition against causing evil and distress, of which damage is sometimes a common side effect.

Hints in the Talmud to a prohibition against creating a damaging hazard, and the language of punishment

In Bava Kamma 51, there is a discussion of a jointly owned pit, where the possibility that both partners sent an agent to dig the pit is rejected on the grounds that there is no agency for a transgression. From this it follows that digging a pit in the public domain is itself a transgression even before any actual damage occurs. Tosafot at the beginning of Bava Kamma is also cited, together with the Mekhilta, on “when a man opens a pit” or “when a man digs a pit,” and the distinction that one does not derive punishments from logical inference. In the name of Mahari Katz it is brought that derivation by logic here relates to the prohibition and not necessarily to monetary payment; and the connection between “punishment” and tort compensation is difficult, hinting at a possible punitive dimension.

The She’iltot and the Levush: deriving the prohibition from the verses about payment, and the dependence between prohibition and payment

In the She’iltot on the portion of Emor it is said that it is forbidden for the house of Israel to damage another person’s property, and whoever damages another person’s property is obligated to pay, as it is written, “he shall make restitution for the animal.” These words portray a prohibition learned from the verse imposing payment. The Levush writes that from the fact that the Torah obligates a person who causes damage to pay, it follows that just as it is forbidden to steal and rob, so too it is forbidden to damage another person’s property. But he defines this as a Torah-level prohibition that is not formulated as a negative commandment. It is argued that three innovations emerge from this: that there is a prohibition against causing damage, that its source is in the payment verses, and that the payment obligation is understood as a punitive result of the prohibition—something that blends together the legal duty of safeguarding as a cause of action and the prohibitory layer.

Non-overlap between the scope of the prohibition and the scope of liability for payment

It is argued that the direct link between prohibition and payment is problematic, because there are cases of prohibition without payment liability—such as indirect causation, where one is liable in the hands of Heaven but exempt in human courts—and there are cases of payment liability without prohibition, such as opening one’s drainage channels into the public domain during the rainy season, which is permitted but still creates liability for resulting damage. A strained possibility was suggested: even if the prohibition is originally learned from the liability, monetary exemptions such as indirect causation do not exempt one from the prohibition. But even so, the mismatch in scope remains a problem.

The cause of action in property-caused damage: failure to guard, or “your property caused damage”

The Mishnah sums up the common denominator among these categories: they are prone to cause damage, their safeguarding is your responsibility, and when they cause damage, the damager is liable to pay compensation from the best land. One possibility presented was to read this as making payment dependent on safeguarding; another was to read it as two separate determinations. The version of the Rif, which adds “your property,” was cited, and its significance discussed. The practical conclusion was that two conditions are required for liability: that it be his property, and that there be a failure of safeguarding—even though the discussion is over which of these is primary and which is only a condition. It was noted that the ownership requirement is not airtight, because a guardian and a robber can be liable even though the animal is not “their property” in the simple sense; and pit in the public domain and fire raise questions of ownership and attribution.

Tosafot Yom Tov and Rashi on “I made its damage possible”

Tosafot Yom Tov says that liability exists when their safeguarding is your responsibility and you were negligent in guarding them until they caused damage. This reads like the understanding that failure of safeguarding is the cause of action, while the fact that the thing is one’s property is generally the reason that places the duty of guarding on him, but is not by itself the sole substantive condition. In Rashi on “whatever I was obligated to guard, I made its damage possible,” two formulations are brought: one explains that the damage was “made possible” because he did not guard properly; the other explains that “I made possible” means that I must repair and pay. The question is discussed whether the second formulation reduces the role of safeguarding as the reason for liability.

Even HaAzel: formulation of the inquiry and a practical difference in a case where someone else did the guarding

Even HaAzel formulates the inquiry as follows: does the liability come from a duty of guarding that was breached, or is the primary liability because his property caused damage, with proper guarding serving only as an exemption of unavoidable accident? He proposes a practical difference in a case where the owner left a door open, and someone else came and closed it, but then the animal dug its way out and escaped through unavoidable circumstances. According to the side that sees safeguarding as primary, there may be an exemption, because in practice it was guarded. According to the side of “his property caused damage,” there is no claim of unavoidable accident available to an owner who himself did not guard it. The lecture argues that this practical difference is weak and can be rejected in various ways.

The burden of proof: Pnei Yehoshua and Chazon Ish, and the criticism of making it depend on the conceptual inquiry

Pnei Yehoshua argues that we do not find that the damager swears that he guarded properly, and therefore the injured party must bring proof that he did not guard properly, under the rule that the burden of proof rests on the claimant. Chazon Ish raises the possibility that the owner must clarify matters, because the damage is before us and the damager is making a novel claim. This is explained as the argument that the damager is asserting something implausible—that he guarded properly and nevertheless the damage occurred—so the burden of proof may shift to him because of the plausibility of the claims, and not necessarily because “his property caused damage” itself creates liability. From this, it is argued that even according to Chazon Ish one can remain within the framework that negligence in guarding is what creates liability, and that the discussion of burden of proof is not a sharp practical difference for the conceptual inquiry.

The Vilna Gaon’s interpretation of “the damager is liable” and the tendency toward liability from the damage itself

The Vilna Gaon explains that “when it caused damage, the damager is liable” means that when the ox caused damage, it made the owner liable. The Talmud’s question is only about the omission of the word “et” in the language of the Jerusalem Talmud. According to this reading, the wording is precise and hints that the damage itself is what obligates, and not necessarily only a mechanism of blame for failure to guard.

Inciting a dog, and the suggestion that the liability “passes” from the property to the owner

Regarding damage caused by inciting a dog, it is said that when someone incites another person’s dog, the inciter is exempt and the owner is exempt. It was also reported in the name of later authorities that even one who incites his own dog may be exempt, which seems very difficult if negligence in guarding is the cause of action. A suggested explanation is that in damages of horn, the primary liability initially rests on the animal itself, and the owner is sued because the liability is transferred to him as the owner of the property. But when the animal is “exempt” because it was incited, there is no liability to transfer. Proof was brought from the law of an ownerless ox, that a non-habitual ox pays from its own body, and that the injured party has a right in the ox even without a human defendant. This supports the conception of liability as resting on the animal.

An intermediate proposal: two jointly obligating factors, not an either-or

It was suggested that the dichotomy between “negligence in guarding creates liability” and “his property caused damage creates liability” is not necessary. The liability may arise from the accumulation of two jointly obligating conditions: his property caused damage, and there was negligence that justifies transferring the liability to him. According to this, the burden of proof remains on the injured party to show negligence in order to recover from the owner, while at the same time one can understand the exemption in the case of inciting a dog, because there is no primary liability on the animal to be transferred.

Rabbi David Povarzky: a proof from the prohibition against causing damage, and its rejection

Rabbi David Povarzky tries to resolve the issue from the fact that there is a prohibition in the case of property that causes damage: monetary liability must stem from the duty of safeguarding, because if safeguarding were only an exemption claim, it would seem there is no obligation to guard. The proof is rejected, because the prohibition is not necessarily identical with the monetary cause of action, and because one can define the prohibition as dependent on the result—that the very damage caused by one’s animal is attributed to the owner—in a model similar to the cessation of labor of one’s animal on the Sabbath, where the medieval authorities dispute whether the prohibition is on failure to guard or on the very act of the animal as the person’s “extended hand.”

Conclusion and direction for what comes next

The lecture stopped before entering into a systematic discussion of the opening sugyot of the chapter HaKones, with a planned transition to direct work on the Talmud itself regarding the scope of the duty of guarding and what is required in order to be “covered” against a claim. Technical instructions were given about uploading files to the model and to Dropbox, and it was emphasized that in the next lecture they would begin sustained work on the sugyot themselves.

Just a reminder to everyone: whoever wants to ask something should press the space bar and turn it on temporarily. Okay, let’s begin. In the previous class I gave a kind of general overview of the laws of damages. I distinguished there between a person who causes damage and property that causes damage, and also between a person and property that are damaged. Right, there’s a situation where the person causes damage or the property causes damage, and there’s a situation where the person is injured and the property is also damaged. I said that in Maimonides there are two different collections of laws. One of them is devoted to property that causes damage, and the second is the laws of one who injures and damages, which is about a person. The difference when the injured party is a person is that when a person injures another person, he pays five categories, not only damage, but also pain, loss of livelihood, medical expenses, and humiliation. We are mainly dealing with the laws of property that causes damage, meaning that a person’s property usually damages other property, maybe also a person, but usually other property. I said that there are several primary categories of damages. Four are listed in the Mishnah at the beginning of tractate Bava Kamma. There are others brought later in baraitot further on, but in principle, for us what matters is this: there is a pit, there is fire, and under ox you have horn, tooth, and foot. Under horn there is an innocuous horn and a forewarned horn. Again, innocuous horn and forewarned horn are not, simply speaking, two different primary categories, but one category of horn, one of whose laws is that for the first three times you pay only half damages. There are specific laws like that in the other categories of damages too. In fire, for example, there is exemption for hidden damage; we’ll talk about that later in the chapter. A pit is exempt for damage to people and damage to vessels: “an ox, but not a person; a donkey, but not vessels.” That’s a dispute among the tanna’im, but that’s how we rule in Jewish law; Rabbi Yehuda disagrees. Tooth and foot are exempt in the public domain, and horn has an exemption for the first three times, where one pays as an innocuous ox, half damages. There is a dispute in the Talmud on page 15 whether that half-damage payment is compensation or a fine. In Jewish law we rule that it is a fine. The difference between them is the basic understanding: is an innocuous ox, in principle, something that should have made me fully liable, only the Torah gave me a discount of half because I’m not so guilty, since the ox is still innocuous? Then the conception is that the half I pay is compensation, because really I should have paid the whole amount, but I was given a discount. That’s the side that says ordinary oxen are not presumed guarded. I should have guarded this ox; I didn’t guard it; so I should pay everything, only they gave me a discount. The side we rule like in Jewish law is that ordinary oxen are presumed guarded. Presumed guarded means that I was not expected to guard the ox; the ox is considered guarded as long as it has not been shown to be a forewarned ox. Therefore, if the ox caused damage, I’m under compulsion, meaning there was nothing I could do, and in principle I should have been fully exempt. Yet they still obligate me to pay half in order to encourage me or prod me to guard the ox, and then the conception is that this half is a fine, since in principle by law I am fully exempt. They obligated me as an addition beyond what I’m legally obligated to pay; such an addition is generally, always, a fine. That’s in general.

Now, I said that there are three aspects of the laws of damages. One aspect that appears explicitly in the Torah is the payment aspect: if I, or my property, caused damage, I am obligated to pay the injured party. The second aspect is the duty of guarding. I have to guard my property so that it won’t cause damage. And the third aspect is the prohibition. The prohibition against causing damage, or the prohibition against my property causing damage. I said there is a question regarding this prohibition I’m talking about, or the duty of guarding—the second and third aspects. There are some among the medieval authorities (Rishonim) and among the later authorities (Acharonim), really mainly among the later authorities, who mix them together; we’ll see that today. They mix them together and assume that if there is a duty of guarding, that itself is the very prohibition: if I didn’t guard, then I violated a prohibition. That is their interpretation of the duty of guarding. And I said that this is not necessary, because there could be a situation where there is a prohibition upon you to guard—if you didn’t guard, then there is a prohibition—or one can also define the prohibition differently; we’ll discuss that later today. In addition, guarding also serves as a tort basis. That means that the fact that I did not guard is a reason people can come to me with a claim and demand compensation from me. In that sense, the duty of guarding is not an obligation that Jewish law places on me like a prohibition. Rather, it is an obligation toward the other person. The other person requires me to guard my animal, and if I did not guard it, then the Torah gives him the right to sue me for compensation. In that sense, the duty of guarding does not function on the plane of prohibitions—say, the plane of Yoreh De’ah. The duty of guarding belongs to Choshen Mishpat. What does that mean? If I didn’t guard, that creates grounds to sue me, to sue me for compensation. Therefore, when I speak here about a duty of guarding in this sense, it is a duty of guarding that belongs to Choshen Mishpat, to the laws of damages between one person and another, and not in the sense of whether I am a wrongdoer or not. There is an obligation, there is a prohibition—that’s the third layer I mentioned before. That’s what I meant when I said I was talking about the duty of guarding. When I spoke about the prohibition, I mean the prohibition—the prohibition that my animal should cause damage, or the prohibition against failing in guarding in such a way that my property may cause damage, that my animal may cause damage. And that prohibition is a Yoreh De’ah prohibition, meaning it is not necessarily connected to the tort claim. There could be a situation where I violated the prohibition but no one can sue me, and there could be a situation where someone can sue me but I did not violate a prohibition. Two independent things. Therefore I insist that there are really three aspects here. One aspect is the prohibition—or the third, really, as I called it before. The second aspect is the duty of guarding in the legal sense, meaning what is required of me in order to be covered, so that no one can sue me for payment. And the first aspect is the duty of compensation. When my property caused damage, or I caused damage, I have to compensate the injured party. That is the duty of compensation.

Okay. Now I want to continue, and I’m going to make the following claim. The medieval authorities, and really you can already see it in the Talmud, assume as something obvious that there is a prohibition—that the third layer I spoke about, the prohibition, also exists. And the question is: where do they derive this from? When it says in the Torah, “and its owner did not guard it,” then ostensibly we learn from that the duty of guarding. But as I said before, it is certainly possible that the duty of guarding in that sense is only the basis that allows the injured party to sue me for compensation. It does not mean that I personally have an obligation to guard. It also appears in the Torah in that form: “and its owner did not guard it,” then he will have to pay. Meaning, it is brought as some kind of condition that allows the other person to sue me for payment. If I did not guard, then he can sue me. It does not appear as a negative commandment: beware lest you not guard your animal, or something like that. It does not appear in the Torah in the form of a prohibition. Therefore, “and its owner did not guard it” is not a sufficient source to tell me that there is a prohibition regarding damage caused by one’s property. So where do they learn it from after all?

Again, this too is a standard opening class in yeshivot on Bava Kamma. Already among the medieval authorities there is a little discussion of this. Last time I brought some material from the Tur, the Shulchan Arukh, and Maimonides, and we saw there that it’s not so simple whether we are talking about the prohibition or about the duty of guarding as a basis for a tort claim. But the Yad Ramah, for example, in Bava Batra chapter two, claims that there is a source for this from “Love your fellow as yourself” or from “Do not place a stumbling block before the blind.” “Love your fellow as yourself”—fine, if you are obligated to care for your fellow, then all the more so you must also be careful that your property not harm him. One could say that this is connected to “Love your fellow as yourself.” Now notice here that clearly this is not talking about a prohibition in the sense of Choshen Mishpat, meaning the reason why someone can sue me. The fact that I’m not careful with my fellow’s honor or I don’t love my fellow never enables him to sue me for anything. That has nothing to do with Choshen Mishpat. When I violate the prohibition of “Love your fellow as yourself,” then okay, I’m not okay, the Holy One will punish me, but it has no connection whatsoever to whether my fellow can sue me for money. So here, clearly, in the Yad Ramah, if he needs “Love your fellow as yourself,” that means he is looking for a prohibition not in the sense of a duty of guarding as a basis for a compensation claim, a monetary claim, but rather a prohibition, a Yoreh De’ah kind of prohibition—a kind of “someone who doesn’t do this is not okay.”

The source of the Yad Ramah—can’t you hear me? Yes, yes, I’m saying that the source of the Yad Ramah doesn’t cover all the cases, because it doesn’t cover cases where, for example, the other person doesn’t mind if I damage him and then pay him afterward. In such a case there isn’t—and I think that… Then really there won’t be a prohibition; who said there would be a prohibition? So it could be there wouldn’t be a prohibition. But I think the explanation is that the Yad Ramah understood that the discussion about the prohibition is not—he did not think that every case of damage has a component of prohibition. He only wanted to say: who says it’s forbidden to be cruel to people and intentionally harm them? So that really is “Love your fellow as yourself.” No, but that really splits it into two separate areas; it doesn’t mean that in the entire area of damages there is a prohibition. No, no, I didn’t say that, on the contrary. I’m saying exactly what you’re saying. Okay. Since he brought “Love your fellow as yourself,” it is clear that he does not understand that there is some general prohibition on causing damage that belongs to Choshen Mishpat, but rather there is a Yoreh De’ah prohibition unrelated to litigation between me and the injured party: if I’m not careful with my fellow’s property, then I violate “Love your fellow as yourself.” Yes, but that’s not a prohibition—okay, but it’s not a prohibition specifically connected to the area of damages. Obviously not. That’s obvious, just like someone who causes damage on the Sabbath also desecrates the Sabbath. That is exactly the claim. That is exactly what I claimed; that’s why I emphasized that this is what you see from the Yad Ramah. So I want to understand whether there is another source showing that someone did think—slowly, slowly, I’m only beginning.

The Yad Ramah himself also brought another source: “Do not place a stumbling block before the blind.” The Kehillot Yaakov also brings this in Bava Kamma in the name of the Yad Ramah, and someone showed him that the Yad Ramah actually writes it. There too, “Do not place a stumbling block before the blind,” again, belongs to the family of “Love your fellow as yourself.” That is, true, “Do not place a stumbling block before the blind”—because we are used to understanding “Do not place a stumbling block before the blind” to mean not causing another person to sin, or not giving him unfair advice. Right? Those are the two things usually learned from “before the blind,” to the point that the Minchat Chinukh, I think, wanted to claim that there is no prohibition at all against putting a literal stumbling block before a blind person. Meaning, putting an obstacle in the public domain so that a blind person will trip over it—that there is no prohibition like that, because the Sages learned from here only unfair advice and causing someone to violate a prohibition. Well, that is completely absurd of course. It is absolutely obvious that there is such a prohibition. The Sages only learned the other things from it as well. Meaning, beyond the plain meaning there are also expositions or extensions of one kind or another. But why in the world remove it from its plain meaning? It is absolutely obvious that there is a prohibition against causing a blind person to stumble on the road. And from that prohibition we can truly understand why there is a prohibition to make a blind person stumble. So the Yad Ramah says: it could be that this is because of the damage caused to him as a result of his falling into a pit, and if so, then in fact we learn from the idea of “before the blind” this prohibition against causing damage to others.

Source number one is somewhat questionable. It is somewhat questionable because “Do not place a stumbling block before the blind”—even if I caused him no damage at all, I merely caused him suffering. There is no damage here that I can perhaps compensate him for, but I caused him some suffering. The plain meaning is that the focus is not on the result that happened to the other person; the focus is on the very causing of suffering. That does not seem to be exactly the prohibition against causing damage, at least not the one they’re looking for as a prohibition against causing damage. But beyond that, even if it were a good source, it still belongs to the same family as the first source of “Love your fellow as yourself,” because it really is some sort of prohibition that is not truly connected to the tort claim; it is not connected to Choshen Mishpat. One has to behave properly toward others, that’s all. So these sources teach us more by what they do not bring than by what they do bring. In other words, you can see that somehow he doesn’t find real sources, and then he looks for these broad catchall clauses under which a great many things can be included. There are those who linked it perhaps to returning lost property, perhaps under the category of “you shall greatly guard your lives,” “do not stand idly by your neighbor’s blood.” Various later authorities went wild here with all kinds of sources, and that only sharpens the difficulty even more.

A cute line I like, which I once heard from Rabbi Meidan: he says he knows twenty-two answers to why we read the Book of Ruth on Shavuot, but he knows only one explanation for why we read the Book of Esther on Purim. Meaning, not an answer, but an explanation. When there are twenty-two, those are answers; when there is one, that’s an explanation. In other words, when you bring twenty-two answers, that means none of them is satisfying, and then you have all sorts of suggestions, more far-fetched or less far-fetched, because there is no self-evident point there, nothing naturally called for. Regarding Purim and the Book of Esther, nobody brings answers, because there it is obvious: you read it because it is the subject of the day. So here too, all these appeals to various prohibitions and clauses that you can or cannot connect only sharpen the fact that there really is no compelling source, no natural source from which one can learn this prohibition.

So there are two more things. There is a claim that maybe it is because of the commandment of legal systems, from the verse “Judges and officers you shall appoint,” or something like that, which also exists for the descendants of Noah. As part of that, basically, the court is supposed to make sure there won’t be damages. And again, the focus is a bit different, because it is somehow more a law upon the public than a law upon a private individual that he may not cause damage. Now true, if the public has to make sure there won’t be damages, then every private individual, as part of the public, is also supposed to cooperate and attend to this matter. But still, it seems to me that this is a somewhat different focus. By the way, that source does seem to me truly natural and very logical, but still it is a bit different. It is not what we would be looking for as a source for the prohibition against causing damage.

In the book Minchat Asher—Rabbi Asher Weiss, also in Bava Kamma section 1—he argues that the basis of the prohibition against causing damage is simple reasoning. “Why do I need a verse? Logic.” He says, after all this is just logical reasoning, and therefore there is a prohibition even though there is no clear source. My own reasoning says it’s permitted to cause damage. Okay, so according to you there is no prohibition; interesting—what is his reasoning? So according to you there is no prohibition, but according to him, and according to me, logic says that it is forbidden to cause damage. That’s strange reasoning. Why is that strange reasoning? Why should it be forbidden? I mean, stop anyone on the street and ask him whether there is a prohibition against causing damage, whether one should make sure his fellow is not harmed, and he’ll tell you yes. No, he’ll tell you yes, but a small follow-up question will reveal that he says yes only if it causes the other person suffering. If the other person doesn’t care, then he has no problem with it. If the other person doesn’t care, then really who says there is a prohibition? What does that have to do with it? But then we return to the point: that’s not a prohibition against causing damage; it’s a prohibition against bothering someone. No, I didn’t understand. It’s a prohibition against harming another person, and making things bad for him. It simply includes damage as a subcategory, but you can’t call it a prohibition against causing damage. Once the damage doesn’t cause the other person distress, there is no problem with it. But why is that relevant? I’m not looking for a special scriptural decree forbidding damage. Why look for such a thing? Not a scriptural decree. I’m just saying it’s not a special prohibition against causing damage. If you’re speaking about the prohibition against doing bad to another person, then the prohibition against causing damage doesn’t have to be unique to that specifically. So what? So if it’s not unique to that specifically, then we already know there are many prohibitions against harming other people. Fine, that’s exactly what I brought until now. What’s the problem? I don’t understand. Yes, but it’s not clear to me what this whole discussion is—whether there is a prohibition against causing damage or not. In most cases when you damage someone, it causes him suffering. That’s the whole story. Very true. So there is a prohibition in that, that’s all. What’s the problem? So the issue is whether there is a prohibition against causing another person suffering? Yes. If I understood correctly, causing another person suffering or causing him damage. There are those who connect it to theft, which I brought in the previous class from the Tur. If you connect it to theft, then that says more than causing suffering. No, that’s already a different discussion. Fine—that it’s taking his money. That’s a completely different discussion. No, it’s not a different discussion; it’s a different answer. There are those who say that the basis of the prohibition is indeed not specific to damage but rather a prohibition against harming another person. There are those who say there is a prohibition specific to damage. Every answer has its own character. We are not looking for one single thing; we are looking for what the prohibition is, and there are different answers. Yes, okay. But it’s presented in a strange way, because if the basis of the prohibition is the prohibition against causing another person distress, then calling it a prohibition against causing damage is simply misleading, because that’s not the prohibition. That is the prohibition. The prohibition is to cause damage. The prohibition is not to happen to cause damage. In the case of damage there is a common side effect. There’s also no prohibition against hitting. The prohibition is only because hitting hurts, so what—then you can’t say there is a prohibition against hitting? What’s the problem? It’s not confusing at all. No, because with hitting, hitting is an essential characteristic. If it doesn’t hurt the other person, then I didn’t hit him. Why is that an essential characteristic? Why? I can cause another person damage, real damage, and he won’t be upset about it; and I can also hit without it hurting him. I can do many things. I’ll anesthetize him first. To hit without it hurting—I wouldn’t call that hitting. No problem. I’ll give him local anesthesia first. Then that’s not called hitting. So what? Then by that logic it’s also not called causing damage if you don’t cause suffering. Really? Yes. Fine, but those are pilpulim, that’s semantics, it’s not…

Anyway, let’s get back to our subject. In the Talmud itself—who says there really is a prohibition? Maybe there is no prohibition. Why are we looking for one? In the Talmud itself, in several places, it is implied that there is a prohibition. For example, the Talmud in Bava Kamma page 51 speaks about a pit owned by partners, and the Talmud examines how there can be a case of a pit belonging to two people. One of the possibilities it says is that both sent an agent to dig a pit in the public domain. The Talmud says that cannot be, because there is no agency for a prohibition. So you see that digging a pit in the public domain is a prohibited act. More than that, by the way, you see that digging the pit is a violation even before someone falls into it and is harmed. In any event, you see that there is some violation in creating a dangerous thing, even before actual damage is caused. Or regarding digging a pit, also on page 2, the Mishnah says, “this is not like that,” we saw the Mishnah last time, so Tosafot there asks… it brings a Mekhilta in which it says that the verse says, “If a man opens a pit, or if a man digs a pit”—if he is liable for opening it, then all the more so for digging it, because digging includes opening. Rather, this comes to teach you that punishments are not derived by logical inference. You see that punishments are not derived by logical inference. Then Mahari Katz there in Shitah Mekubetzet brings that from the pit they learned only regarding the prohibition, but not regarding monetary liability. In other words, you see that there is some prohibition in digging a pit, at least according to his view, though really one could hesitate about that. Also, the very fact that it says “punishments are not derived by logical inference”—if we are talking about punishment, then plainly it means a sanction for a prohibition. The very viewing of damages as punishment is indeed a difficult problem in itself, but that is what you see there. By the way, if one learns it from “Do not place a stumbling block before the blind,” then I think a pit is really the most natural candidate for learning a prohibition from “before the blind,” because the other damaging agents are farther removed from that law. A pit is exactly that itself.

In any event, regarding a person who causes damage, there too in several places it appears that a person who damages his fellow violates a prohibition, but right now I’m speaking about property that causes damage. In several places you do see them connecting the prohibition with the duty of payment. Here, I’ll share the file with you. Look here at the She’iltot on the Torah portion of Emor: “It is forbidden for the house of Israel to damage a person, the property of his fellow. And one who damages his fellow’s property is obligated to pay, as it is written, ‘One who strikes an animal shall make restitution.’” By the way, that verse is in the portion of Emor: “One who strikes an animal shall make restitution.” So he brings the verse that speaks about the duty of payment, and from here he learns that it is forbidden for one Jew to damage another Jew’s property, and whoever causes damage must pay. So first of all, he learns that there is a prohibition. Second, it seems from his words that the source of the prohibition is this verse that obligates payment—not “You shall not steal,” not “before the blind,” not anything like that, but from the fact that it says “One who strikes an animal shall make restitution,” we learn that it is forbidden to cause damage. That really is a very far-reaching claim.

The Levush writes similarly, by the way. Look here: “From the fact that the Torah obligated a person who causes damage to pay, just as it obligated one who steals or robs his fellow’s property”—this we saw in the Tur—“we infer that just as it is forbidden to steal and rob, so too it is forbidden to damage another person’s property. Except that in the case of stealing and robbing the Torah was stricter, making him also transgress a negative commandment for which he would receive lashes.” That’s strange, because there are no lashes for that, by the way—it’s a negative commandment remedied by payment—but in the case of one who causes damage, it is only a Torah prohibition. Okay? So what is this? We learn from stealing and robbing also about one who causes damage, but in the case of causing damage it’s not really a negative commandment; it is a Torah prohibition that is not a formal negative commandment. So where do you learn it from? “From the fact that the Torah obligated a person who causes damage to pay.” In other words, from the fact that the Torah obligated the person who caused damage to pay, we learn that there is a prohibition, just as there is a prohibition for a thief and a robber. But it’s not really learned from thief and robber, because then there would also be a negative commandment here. Rather, it’s some kind of analogy. But basically they learn it from the very obligation to pay, as is implied in the She’iltot. And this is really, really puzzling. It is very puzzling, because according to this the claim comes out that the obligation to pay is basically a result of the prohibition. So in effect we learn three things from the Levush and the She’iltot. First, that there is a prohibition against causing damage. Second, that the prohibition is learned from the verses that obligate payment. That is already a novelty—a specific prohibition against damage, exactly as Binyamin said earlier. Here it’s really that. Third, and I think this is learned indirectly, but it seems to me that this is what they assume in the subtext, that the obligation to pay is a result of the prohibition—it is because of the prohibition, or it is a punishment, as we saw in the Mekhilta and Tosafot at the beginning of Bava Kamma. In other words, the payment is basically a punishment for violating the prohibition against causing damage.

It seems to me they explain this from the second half of the verse the She’iltot brings: “One who strikes an animal shall make restitution, and one who strikes a person shall be put to death,” where it is certainly a punishment. Fine, but still you see—no, so they say it is an analogy. Just as “one who strikes a person shall be put to death,” death is a punishment, and the analogy—well, the analogy he draws is to theft. I don’t know, maybe. But the analogy he actually mentions is to theft; he doesn’t draw the analogy to the continuation of the verse. But fine, one can add that too. In any case, for our purposes these three things still emerge: that there is a prohibition, that it is learned from the verse that obligates payment, and that apparently there is a connection between the prohibition and the obligation to pay. In other words, the obligation to pay is a punishment for the prohibition. These are three novelties, none of which had to be true. And then this really takes us a bit in the direction that the duty of payment is basically a result of negligence in guarding in the legal sense—that there is a mixing of the second and third layers I mentioned at the beginning of the class, the obligation to guard and the prohibition. The obligation to guard is the prohibition; it is also a prohibition, and the punishment for it is the duty of payment. Then one can better understand the Mekhilta that speaks about deriving punishments by logical inference in the context of the duty to pay damages, which on its face is strange—what does punishment have to do with it? This is an obligation of compensation. But from here you really do see that there is at least some punitive dimension here.

Now it could be that it’s only punishment—sorry for interrupting all the time. Again? I’m just saying now that it could be only punishment. There is no legal dimension at all. It’s a novelty, but maybe one could understand it that way. Yes, but that’s not so implausible—it’s not implausible. Fine, but in any case this approach is, in my opinion, a puzzling approach. But no, it’s puzzling in our eyes because we already know there is such a category as criminal law and all that, but that’s a little anachronistic; I don’t know if they… No, I don’t think so. I think the Sages and the medieval authorities were aware of this even if they didn’t conceptualize it explicitly. That, I think, they were aware of. But one can manage without it; it’s coherent. Meaning, you don’t have to say there is such a category. It could be that everything is just prohibitions and punishments, period. Someone who causes damage… Then the question is what the difference is between prohibition and monetary law. What? But the categories of prohibition and monetary law appear in the Talmud. What’s the difference? According to you, the monetary aspect is simply a punishment for a prohibition—so what is the category? I think that question is asked in many places—yes, we do derive monetary law from prohibition. Never mind, but the very fact that in some places they say we do not derive from one to the other shows that there are two different categories here. Now, it could still be that in other cases one can learn one from the other, but the categorical distinction itself exists in the Talmud. Right, but there are also distinctions within prohibitions of different kinds—between Sabbath and other prohibitions, between forbidden sexual relations and other prohibitions. So there are prohibitions of causing damage in the laws of damages. So that’s monetary law from prohibition, but they’re not two kinds of prohibition. I understand. That’s how it seems to me.

Would that also work in reverse? What? If we take the view that the duty of payment is the source of the prohibition, then say for tooth and foot in the public domain there would also be no prohibition? You can reverse it too. Just a moment. Ostensibly yes—that is what comes out according to their view. In a moment we’ll see. Very puzzling. Right, in a moment we’ll see; I’m about to note that.

The Kehillot Yaakov too, in section 1 on Bava Kamma, wants to bring a proof against this approach. He doesn’t bring it from the Levush and the She’iltot; he raises such a possibility in his own name, and he rejects it. He says it cannot be, because surely a person is allowed to lead his animal in the public domain. In the Talmud on page 6a it is explained that even horn damage is considered damage done with permission. If you go in the public domain, you have the right to walk with your property in the public domain; only if it caused horn damage you have to pay. But you have the right to walk with your animal in the public domain; the public domain is designated for walking with animals. That is exactly why in tooth and foot you are exempt. In tooth and foot you are exempt because you walked there, and whoever leaves his property in the public domain was negligent himself; he should have been careful, because he knows people walk there with their property. So from here, says the Kehillot Yaakov, we see that a person is permitted to walk in the public domain. On the other hand, at least regarding horn damage, he is obligated to pay even in the public domain. So what does that mean? That we see that even though it is permitted, there is still a duty of payment. So one cannot say that the duty of payment is a punishment for a prohibition, because here there is a case where there is no prohibition and yet there is a duty of payment.

That argument seems problematic to me. It seems problematic because I don’t know where the Kehillot Yaakov derives this from. If we are talking about an innocuous horn, then yes indeed, innocuous horn is a fine; there is no duty of payment, only “so that he should guard his ox.” On the contrary, it fits very well. In fact you pay half damages as a fine—why? Because in principle you are not obligated to pay, since you acted in the public domain and you have a right to walk there. Only if the animal caused damage, the Torah still obligates you to pay half in order to encourage you, to prod you, to guard it. Fine, but that’s no contradiction. That’s not the ordinary duty of compensation. And in the case of a forewarned ox, who says it’s permitted to walk with it in the public domain? It could be forbidden, or at least as long as you do not guard it in a sufficiently good way, you violate a prohibition if you walk around with it in the public domain. In tooth and foot, there really is no prohibition, and indeed you are also exempt from payment. Therefore I don’t really understand this argument of the Kehillot Yaakov.

There is another thing I want to claim, but that’s later. The Kehillot Yaakov assumes that if I am allowed to walk with an animal in the public domain and I still have to pay, then that means the duty of payment does not depend on a prohibition. But that doesn’t have to follow at all. It could be that I’m allowed to walk with an animal in the public domain provided that I guard it properly, at least from horn damage. And if I didn’t guard it, then I have to pay and I also violated a prohibition. The prohibition is not that I walked with my animal in the public domain; the prohibition is that I walked with it carelessly, that I didn’t guard it properly. That’s a second way to reject the argument. And a third rejection, which I’ll also return to later, is this: he assumes that the prohibition is not guarding. But I’m not sure that is the necessary definition, and many later authorities assume that if there is a prohibition, it means a prohibition against not guarding. I’m not sure that is true. Certainly it is possible that the prohibition is on the very fact that my animal caused damage. The same conceptual inquiry we discussed regarding the duty of payment—whether it is because of negligence in guarding or because of the simple fact that the animal is mine—I can say the same about the prohibition, not only the duty of payment. Regarding the prohibition too I can say that the prohibition is against not guarding, and I can say that the prohibition is such that when my animal causes damage, I thereby violate a prohibition. If I guarded properly, then I am exempt, but the prohibition is from the very fact that my animal caused damage.

An example of this—I’ll maybe anticipate what comes later a bit—is the law of one’s animal resting on the Sabbath. The Or Zarua already brings this on page 17. He says that this is really a dispute among the medieval authorities at the beginning of the chapter “One Who Was Traveling at Twilight,” on the question of what exactly the prohibition of one’s animal resting means. When my animal performs prohibited labor on the Sabbath, I violate a prohibition. That’s the basic rule in one’s animal resting. Now, what does that mean? There are those who understand that the prohibition is that I did not guard it and it did the labor on the Sabbath. And there are those who say no: the animal is some kind of extension of me. When the animal performs labor on the Sabbath, it is as if I myself violated a prohibition—not because I didn’t guard it, but simply because the animal is my extended hand. So if it performs labor on the Sabbath, it is as though… of course not fully; this is not a prohibition for which one gets stoning, but it is a Torah prohibition of one’s animal resting. And this is a dispute between Tosafot Rid and the Ritva at the beginning of the chapter “One Who Was Traveling at Twilight,” and others. So sometimes one can see that there are situations where the animal is really some kind of extension of me, or my extended hand, and when people say that I have a prohibition when my animal causes damage, they do not necessarily mean that the prohibition is that I did not guard it. The prohibition is the very fact that it caused damage. This prohibition is like my own causing damage. If I guarded properly, it could be that they exempt me because I was under compulsion. Fine. But still, the prohibition is the fact that it caused damage and not the fact that I failed to guard it.

Okay? You can formulate it by saying that the prohibition is really in principle on it causing damage, and I step in in its place as the owner. There is also some support for this from the laws of horn damage, for example, where an innocuous ox pays from its own body. So it seems that the original prohibition rests upon it. I’ll make an interesting note about that later—I hope I’ll still get to it today. It’s an interesting point; I’ll return to it later.

Okay. Now, this dependence that the Levush and the She’iltot make between the prohibition and the duty of payment is generally problematic, because there is no overlap in scope between the prohibition and the duty of payment. There are situations where I am obligated to pay and there is no prohibition, and there are situations where there is a prohibition and I am not obligated to pay. For example, if one sends a fire through a deaf-mute, an incompetent, or a minor—we’ll see this later in our chapter—there are situations where one causes damage only indirectly. In indirect damage, plainly there is a prohibition, one is liable by Heaven, but there is no duty of payment, at least not in a human court. So you see there is a prohibition and no duty of payment. Conversely, the Talmud on page 6 speaks of a case where a person does not violate a prohibition but is still obligated to pay: opening one’s drains. People are allowed to let sewage out into the public domain during the rainy season, and that is permitted. But you are still responsible. If it causes damage, you have to pay. That is what the Talmud on page 6b says. So you see there are situations where there is no prohibition but there is a duty of payment. There are situations where there is a prohibition and no duty of payment. So it is hard to say that the prohibition is derived from the duty of payment.

One could push back, with some difficulty, and say that once one says there is a duty of payment, and the Levush and the She’iltot say apparently this hints that there is really a prohibition here—then after I have learned that there is a prohibition against causing damage… now comes the exemption of indirect damage. The exemption of indirect damage may be only from payment, but it does not exempt from the prohibition. In other words, I started with the fact that I learned the prohibition from the Torah’s obligating payment, but now there is a prohibition in every situation where my property causes damage. Sometimes, even if the Torah exempts from payment, that does not mean it also exempts from the prohibition. It could be that the prohibition remains. So maybe one could also reject the difficulty that way.

And now I want to begin—we’ll take a break of a few minutes. I want to begin to understand this issue: what exactly is the basis of the claim? Negligence in guarding, or the very fact that my property caused damage? This is something I spoke about a little last time. I want to get into it a bit more, and then move into the laws of guarding regarding damages, which is already really the issue at the start of the chapter. So let’s stop for three or four minutes, splash some water on your face, get yourselves a cup of coffee. I see there are people here without cameras, so I just ask—whoever can, whoever doesn’t have some special reason—please turn on your cameras, okay? This is even a demand of the university, to sit in lectures with cameras open. Fine, so we’re breaking for a few minutes, and in, say, another four minutes we’ll come back. Okay.

Okay, let’s begin. I’m continuing. One second. Fine. So as I said, I now want to begin touching on that classic inquiry of the later authorities regarding the connection between the duty of guarding and the duty of payment, or what exactly is the basis of the claim regarding the duty of payment. In the Mishnah at the beginning of Bava Kamma, after saying there are four primary categories of damages, the Mishnah concludes: “What is common to them is that their way is to cause damage, and their guarding is upon you, and when they cause damage, the one who caused the damage is obligated to pay compensation from the best of the land.” So—let’s wait here for a second—yes, “when they cause damage, the one who caused the damage is obligated to pay compensation from the best of the land.” In this case the wording seems to imply that the guarding—that they impose upon me the duty of guarding—that is what constitutes the duty of payment. “Their guarding is upon you,” and therefore “when they cause damage, the one who caused the damage is obligated to pay compensation from the best of the land.” One could also read this differently, as two independent statements: their way is to cause damage, and their guarding is upon you; and separately, when they cause damage, the one who caused the damage is obligated. There is a duty of guarding and there is a duty of payment, but it is not that one is because of the other.

Now look at the Rif, for example; there is a difference in the wording. The Rif, for example, says: “your property, whose way is to cause damage, and your property, whose guarding is upon you, and when it causes damage, the one who caused the damage…” You see here, the phrase “your property” is not in our version of the Mishnah. “And your property, whose guarding is upon you, and when it causes damage, the one who caused the damage…” What is the difference? The Rif includes “whose way is to cause damage, and your property, and whose guarding is upon you.” In the Mishnah it says only “whose guarding is upon you,” not that it is your property. Some later authorities wanted to claim that this addition of the Rif comes to make exactly this point: that it is not that the guarding is the basis obligating payment, but perhaps the very fact that it is your property. So there are the characteristics of this thing: that it is your property and its guarding is upon you. The result is that when it causes damage, the one who caused the damage is obligated to pay compensation from the best of the land. If it were like that, I would have said the opposite—I would have said “and its guarding is upon you, and it is your property,” not “and it is your property and its guarding is upon you,” because if “its guarding is upon you” comes right before the phrase “when it causes damage, the one who caused the damage…,” there would still be room to connect them. Maybe yes, maybe no; I don’t know.

For our purposes, one thing is clear, and everyone agrees on it: two things are required in order to obligate a person to pay for damage caused by his property. One requirement is that it be his property, and the second requirement is negligence in guarding, or that he didn’t guard it properly. In other words, if it is not my property, or alternatively if it is my property but I guarded it properly, then I am exempt from paying. As I said earlier, there is a discussion among the later authorities as to whether negligence in guarding is what obligates payment, or whether the very fact that it is my property obligates me to pay. On the face of it, the simple reading says it’s either this or that, but as I said a moment ago, no one argues that both requirements are needed. It must be my property, and there must be negligence in guarding. If one of the two requirements is missing, the person is not obligated to pay. So what is the dispute here among the later authorities, and among the medieval authorities? What is the dispute? The dispute is over which of the two requirements is primary and which is merely a side condition. Is it that I must pay because my property caused damage, except that if I guarded it properly I can be exempted—meaning, lack of guarding is a condition for liability, even though the tort basis, why they sue me, is because it is my property? Then the basis of the payment is responsibility for what my property does, except that if I guarded properly I am exempt. Alternatively, no—it could be that negligence in guarding is the basis of the tort claim; it is only that what am I obligated to guard? Only things that are my property. So the fact that the thing is my property is some kind of condition, but the basis for suing me is negligence in guarding.

Another point I should mention here: true, everyone agrees that it has to be my property for me to become liable, but that’s not completely unambiguous. Why? For example, when I hand the animal over to a guardian, usually when I hand it over to a guardian the purpose is that he should guard it so it won’t be damaged, won’t be stolen, and so on—to guard the animal so nothing happens to it. But the Torah also imposes on the guardian a duty to guard the animal so that it not cause damage, even though the animal does not belong to him; it is not his property. And if the animal caused damage while you were the guardian, you are the one who has to pay. Apart from that there is a puzzling Maimonides in the laws of hiring, but that really is strange. The simple understanding, and all the decisors agree, is according to the Talmud that a guardian who was guarding an animal and the animal caused damage—the guardian has to pay. The animal is not his, after all. We said it has to be “your property” in order for you to be obligated regarding guarding. Fine. So here one can begin wondering whether it is considered his for this purpose. We also saw this in the sugya regarding leaven on Passover on page 34 of tractate Pesachim. There too the Talmud discusses the possibility that a guardian has some dimension of ownership over the thing given to him for guarding. That is one reservation; we’ll get to it, so I won’t go into detail now. We’ll get to it on the next page.

Another reservation is regarding a robber. What happens when a robber steals the animal? Again, it isn’t really his either. Maybe it is in his possession; that depends whether this is after despair of recovery or before despair of recovery. We’ll get to that too. But if the animal causes damage, he too has to pay. So you see that the requirement that he be the owner is a principled requirement, but it is not airtight. Also, as I mentioned last time too, there is a pit in the public domain. When I dig a pit in the public domain, the ground of the public domain is not mine. And if I dug a pit in the public domain, that doesn’t make it mine. The ground belongs to the public domain; it belongs to the public. But the Torah treated it as if it were in my possession “so that I would be liable for it.” It is one of three things that the Torah treated as being in a person’s possession so that he would be liable for them. So on the one hand you see that there is a requirement that it be mine in order for me to be liable. On the other hand, where it is called for, even if I am not the owner in the formal sense, I am still liable. Another example, by the way, is damage caused by fire, which we’ll also discuss later. The question is whether one can speak of my ownership over fire. Plainly not. Fire is something without substance; there is no such thing as a fire that is mine. Yet I am liable for the damage it causes. Is that because it is a person causing damage, or property causing damage? We’ll come back to that later in the chapter too. But in principle, it must be mine and there must be negligence in guarding. So what is the obligating factor?

Now look at the Tosafot Yom Tov on the Mishnah here. He writes as follows: “And their guarding is upon you—that is, you became obligated to guard them because they are your property, or because they were handed over to you to guard, or because you did something with them that obligates you to guard them, as we say, ‘their guarding is upon you,’ etc., for you are liable for their damage only when their guarding is upon you and you were negligent in guarding them until they caused damage.” Okay? So it seems he understands that your duty of guarding is the basis on which they obligate you to pay. You are liable for the damages only when their guarding is upon you and you were negligent in guarding them until they caused damage. Again, with some strain one could say that if you were negligent in guarding—without that you are not liable—but not that negligence in guarding is the basis of the claim. But plainly it does not look that way. Plainly, according to him this is really the basis of the claim. And then it comes out, as he implies, that the requirement that it be your property—like we saw in the Rif’s version—is not really because it has to be your property in order for you to be liable for the damage it causes. Because it doesn’t really have to be. For example, a guardian—it is not his property, and yet he is liable for damage caused by the animal. Or a robber, or fire, or all the examples I mentioned before. Therefore he says that the reason it has to be your property is because only regarding something that is your property is there a duty upon you to guard it. Therefore it has to be your property. But in essence, what obligates you to pay is that you have a duty to guard or that you failed in the guarding. That is the tort basis. The condition that it be your property is simply in order for the duty of guarding to apply to you. But that is what he says: if you become obligated in guarding not because it is your property but for some other reason—look here in the first line, yes? “You became obligated to guard them because they are your property, or because they were handed over to you to guard.” If there is another reason that establishes, that generates, an obligation of guarding upon you, that also works. Then too you will be liable; it does not have to be your property. “Your property” is only the usual case, because there that is usually the reason why you have to guard.

Okay? So that is what comes out of the Tosafot Yom Tov. Wait—why did I repeat this here? One second. In Maimonides, we already saw in the previous class that it seems the very fact that it is your property is what obligates you to pay, not negligence in guarding. Now let’s look at things a little more closely. What is the point of this inquiry? I attached some files here. So the Even HaEzel—actually before the Even HaEzel, in the Mishnah on page 9b, the Mishnah says: “Anything for whose guarding I became obligated, I have prepared its damage.” Look here: “Anything for whose guarding I became obligated, I have prepared its damage.” It’s one of those Mishnayot with a few terse slogans like this. So that is the first part. Rashi there brings two versions to explain this. What does “I have prepared its damage” mean? Rashi says: here—if it caused damage, I prepared and enabled that damage because I did not guard it properly. “Thus I found.” From here it seems: “Anything for whose guarding I became obligated, I have prepared its damage.” What does that mean? Rashi says: I became obligated in guarding it; my negligence is what caused the damage, and therefore they sue me to pay. In another version: “I have prepared its damage” means it is upon me to repair and rectify the damage, meaning I am obligated to pay. There are later authorities who wanted to say that this second version comes precisely to say that. The “preparing” of the damage does not mean that negligence in guarding causes the claim. The claim is because of responsibility, because it is my property; it only applies to something for whose guarding I am responsible, but it is not that negligence in guarding prepared the damage or created the ability to sue for the damage. That is how some later authorities understood Rashi’s words.

In the Even HaEzel, he is basically the first one who presents this inquiry in a clear way—not sure if he’s literally the first, but he is usually the main source people bring in this context. And he says: “There is a well-known inquiry whether liability for damages is because the Torah imposed a law of guarding upon the owner, and they are liable when there is a lack of guarding, or whether the owners are obligated to pay when their property causes damage, and guarding is an exemption by which the Torah exempted the owners because of compulsion, since they guarded properly. And from the wording of Maimonides, who wrote: every living creature… the owners are obligated to pay because their property caused damage”—that was the Maimonides we saw in the previous class—“it seems that this is the primary reason for the duty of payment, and not that they are liable because of the duty of guarding.”

Now, says the Even HaEzel, the practical difference between these two possibilities can be explained as follows: if the owners did not guard their animal and then someone else guarded it—for example, they left it behind an open door, and another person came and closed it, and then the animal tunneled out…” The animal, in other words, I left with the door open and someone else came and stood by the door and guarded the animal, or closed and locked the door, and now the animal tunneled out under the wall or under the door, whatever—tunneled, which is an uncontrollable accident. Then the Even HaEzel says this is not a case to which one can apply the rule of “it began in negligence and ended in compulsion,” because that applies only where it was unguarded and could have caused damage even without compulsion. But where in any case it was guarded, only the owners themselves did not guard it, then by logic this depends on the inquiry mentioned above. If the duty of payment is because of the duty of guarding, then the essence of the obligation is not to leave an animal unguarded, and since in fact it was guarded—even though the guarding was not by the owners themselves—still, at least they did not have an unguarded animal. But if we say that the exemption is because of compulsion, and in the category of compulsion the Merciful One exempted him, as the Talmud says at the beginning of the chapter HaMani’ach, while the very duty of payment when his property caused damage is the primary law, then one cannot invoke compulsion here, since he himself did not guard it at all, and how can he claim compulsion?”

What is he saying? He’s saying that if I left the animal unsecured, then really I was negligent in guarding it. Now someone else came and closed the door for me. The animal got out in a totally uncontrollable way—it tunneled under the ground, which is an uncontrollable event by all opinions—and caused damage. So if the liability to pay is because of lack of guarding, then here there was no lack of guarding. True, I was not the one who guarded it, but the animal was guarded, so I am exempt. But if the liability is responsibility because my property caused damage, then here my property caused damage. I only want to be exempt because I guarded properly and therefore I was under compulsion. But that’s not true: I myself did not guard properly. Someone else guarded in my place, but I did not do what I was supposed to do. So I do not have the exemption of compulsion.

I think you can understand on your own that this practical difference is a rather weak one. One could also say—one could also reverse it. There is perhaps another way to say it about a different case. For example, if no one else came and guarded it—I left the door open and then the animal tunneled under the wall. It did not go out through the open door. Okay? In that case I would say that if the damage is because of negligence in guarding, it was not caused by negligence in guarding, so one cannot sue me on the basis of negligence in guarding, because that is not what caused the damage. But if they come to sue me for the damage and I want to claim that I guarded properly and therefore they should exempt me—then there too one could argue about whether I am exempt. So these practical differences are somewhat shaky practical differences. I’ll say even more than that: almost all the practical differences people bring—and they bring dozens and hundreds of practical differences—every yeshiva class on damages, on Bava Kamma, makes use of this inquiry and brings practical differences. I know almost no real practical difference that truly depends on this inquiry. All the vast practical differences they bring, in my opinion most of them don’t really get off the ground. They are not truly practical differences in this inquiry; one can reject them. And actually this is true of several very foundational inquiries. For example, the inquiry that always pops up… whether the prohibition is entirely permitted or merely pushed aside—that has no practical difference at all, not even one practical difference. What difference does it make whether it is entirely permitted or merely pushed aside? There is no practical difference at all. In the end, you are still forbidden to do something unnecessary for saving life, even if the prohibition is entirely permitted. It’s nice to say it is entirely permitted, but it is entirely permitted for the purpose of saving life. If it is not needed, then it is not. And if it is needed for saving life, then it is permitted even if it is merely pushed aside. So what’s the practical difference? Will you say that I need to repent because there was still a violation if it is merely pushed aside? The prohibition was pushed aside, but I still committed an offense, so I need to repent? Nonsense, of course. One does not need to repent for something he is commanded to do—not only is he allowed to do it, he is commanded to do it. As part of repentance would I then say that I take it upon myself not to repeat this sin in the future—that when a life-threatening situation comes, I will not desecrate the Sabbath? Is that part of repentance? To regret and accept for the future not to do it again? Obviously not. One does not need to repent for such a thing; on the contrary, one is rewarded for it. In short, I know of no practical difference between “entirely permitted” and “pushed aside” in that matter.

And here too, with this inquiry: even though it keeps coming up and everywhere they bring all kinds of practical differences, if you look carefully at the practical differences they bring, you’ll see that really almost all of them can be rejected. And the most classic practical difference they bring in this context is the burden of proof. The dispute between the Pnei Yehoshua and the Chazon Ish—that’s well known; all the later authorities bring it. The Pnei Yehoshua at the beginning of our chapter, on page 56b, says as follows: “Nowhere do we find that the one who caused the damage must swear that he guarded properly. Rather, it appears that, on the contrary, the injured party must bring proof that the one who caused the damage did not guard properly.” Suppose my animal damaged my fellow’s animal. It is known—it is my animal and it caused damage. There is no dispute about those facts. The question is whether I was negligent in guarding it or I guarded properly. The Pnei Yehoshua says: we have never heard anywhere that the one who caused the damage must swear that he guarded properly. The burden of proof lies on the injured party. And why? Because who is trying to extract money here? The injured party is the one trying to extract money from the one who caused the damage. So he is the extractor; let him bring proof that he deserves it. That is what the Pnei Yehoshua claims. Therefore, the Pnei Yehoshua understands that the burden of proof lies on the injured party.

But the Chazon Ish says the opposite: “And one must consider: if the owners say they guarded properly, is it on the owners to clarify with witnesses, or on the injured party to clarify that the owners were negligent? And it seems that it is on the owners to clarify, since the damage is before us, [and] the one who caused the damage is considered to be making an unusual claim, and it is upon him to clarify it,” and so on. What is the Chazon Ish saying? He argues that the burden of proof is on the one who caused the damage. Now that’s strange, because the injured party is the one trying to extract money, so how can you place the burden of proof on the one who caused the damage? The defendant has to bring proof in order to be exempt? So the later authorities explain in the name of the Chazon Ish that the Chazon Ish understands that what obligates payment is the very fact that my property caused damage, not negligence in guarding. The claim that I guarded properly is a claim of exemption. Therefore they say as follows: if that is indeed the approach, then the fact that my ox gored your ox is already known. That means my ox caused damage. So first of all, I am liable to pay. Now I want to claim that I guarded properly and be exempt—that is already a claim of exemption. If I want to be exempt, then I should bring proof in order to be exempt. I am liable unless I prove that I guarded properly. Therefore, says the Chazon Ish, the burden of proof lies on the one who caused the damage, even though he is the defendant.

The Pnei Yehoshua claims that negligence in guarding is what obligates payment, so what follows? That as long as the injured party has not proven that I was negligent in guarding, who says I am obligated to pay him at all? Let him prove that I was negligent in guarding in order to show that I owe him money. The Chazon Ish, who says the burden of proof is on the one who caused the damage, says that because he claims that the very fact that my property caused damage in itself obligates me to pay. I can only be exempt if I prove that I guarded properly, but for that the burden of proof is on me—I need to prove that I guarded properly. That is how they usually explain it. Rav Shmuel and everyone else follows him like sheep to the slaughter. But the truth is that it is not correct. When you look at the Chazon Ish, it is absolutely clear that that is not what he says.

Look again—I’ll quote his wording now. “And it seems that it is on the owners to clarify, since the damage is before us, [and] the one who caused the damage is considered to be making an unusual claim, and it is upon him to clarify it.” What does he mean? It seems to me that what he means is this: in the end, a person has to guard his property so that it not cause damage, right? Now you claim that you guarded properly and still this happened. That is an unlikely claim. Because if you guarded properly, then “guarding properly” means guarding in such a way that it is unlikely that damage would occur. That is what it means to guard properly. We’ll also see this at the beginning of our chapter. If so, then the claim you are making is an implausible claim. You are saying: I guarded properly and nevertheless damage occurred. The other person says: he did not guard properly, and therefore the damage occurred. That is a plausible claim. The burden of proof lies on the one making the implausible claim, even if he is the current possessor. The other person is still trying to extract money—the injured party is the extractor. But since the one who caused the damage, who is the current possessor, is making an implausible claim, the burden of proof falls on him. That is what the Chazon Ish says. It is an interesting novelty. He wants to say that the burden of proof is not determined only by the question of who currently holds the money, but that the plausibility of the claims also plays a role. If one side is making a very implausible claim, he becomes the one on whom the burden of proof rests.

If that is indeed so, then it follows that the Chazon Ish too assumes that the basic burden of proof lies on the injured party. It is only because here the one who caused the damage is making an implausible claim that the burden of proof is placed upon him. In other words, according to this direction, both the Chazon Ish and the Pnei Yehoshua agree that negligence in guarding is what obligates payment. Therefore, this practical difference is also not such a clear practical difference, at least in one direction. That is, someone who says that responsibility for my property having caused damage is what obligates payment, and negligence in guarding only exempts, will certainly say that the burden of proof is on the one who caused the damage, like the Chazon Ish. But someone who says that negligence in guarding is what obligates payment could say either like the Chazon Ish or like the Pnei Yehoshua. So the dependence works only in one direction, not in both.

In a moment we’ll see that I can undermine this practical difference even more. There is also an interesting little anecdote here, so I’ll bring that too. In the Talmud on page 6, it says: “when it caused damage, the one who caused the damage is liable.” The Talmud asks: “liable, the one who caused the damage?” It should have said: “the one who caused the damage is liable.” What is this wording: “when it caused damage, liable is the one who caused the damage”? Rav Yehuda said in the name of Rav: this tanna was from the Land of Israel and taught in a light, clipped style. A clipped wording, an imprecise one—so he says “liable” but really it should have said “is liable.” That is how they usually understand it. But the Vilna Gaon has a brilliant interpretation here. The Gaon says that “when it caused damage, liable is the one who caused the damage” means that when the ox caused damage, it made the damager—its owner—liable to pay. Therefore it did not say “the damager is liable,” but “it made the damager liable.” The only question was why it says “it made the damager liable” rather than “it made the damager liable” with the direct object marker. On that they answer: he was a tanna from the Land of Israel who spoke in a clipped style. The omission is of the “et,” not the shift from “is liable” to “liable.” Otherwise, he says, then why in the other Mishnayot do they always say “liable” and not this shortened form? What, only this Mishnah was taught by some strange tanna from the Land of Israel who shortens his language? The whole thing is very odd.

The Vilna Gaon offers a really brilliant solution here. He says: “when it caused damage, liable is the one who caused the damage” is perfectly exact. When the ox caused damage, it made the one who caused the damage liable—it caused the owner to become liable for payment. The only question is why it says “made the damager liable” rather than “made the damager liable” with the direct object marker. So they answer: he was a tanna from the Land of Israel who used a clipped style, like Ben-Gurion, who omitted the “et”; Ben-Gurion used to speak without “et.” So that’s what he says.

Now according to this reading, what does “when it caused damage, liable is the one who caused the damage” mean? The ox made me liable to pay. What does that mean? It is quite clear that what makes me liable to pay is not negligence in guarding, but the very fact that the ox caused damage. Not negligence in guarding, but the very fact that my property caused damage. It seems to me that this is written there as well. In any case.

Let me perhaps bring another reservation regarding this practical difference. In the Talmud on page 21, the Talmud discusses inciting a dog. If I set a dog on, say, a sheep and it bites it or damages it, then I am liable to pay. What happens if I incite my fellow’s dog against a third party’s animal? The Talmud says I am exempt, because the dog is not mine, and he is exempt because he is not at fault—I incited the dog. The Talmud says there that I am exempt. So there are several later authorities there—Ayelet HaShachar discusses it at length, and the Chazon Ish, and the Pnei Yehoshua. All of them, both the Chazon Ish and the Pnei Yehoshua—note that this itself is interesting—say: what if I incited my own dog, not someone else’s? In the Talmud the case is where I incited someone else’s dog. What if I incited my own dog against someone else’s animal? These later authorities say: I am exempt. I incited my own dog, and I am exempt.

Now think about it: if the dog was in its kennel and I opened the door, or didn’t lock it properly, and it went out and bit, then I am liable. So when I incited it—not only did I allow it to get out, but I actually caused the damage—then I would be exempt? How can one say such a thing? Such a statement makes no sense. It is a little like one who throws a vessel from the top of a roof and someone else catches it with a sword, or someone else breaks it; there is an opinion in the Talmud that both are exempt. What happens if I threw it off the roof and then ran quickly downstairs and broke it myself just before it hit the ground? There are later authorities who want to say that even then I am exempt. For the breaking I’m exempt, because when I threw it from above it was already considered broken; and for the throwing from above I’m exempt because in the end that is not what broke the vessel. As if there were two people here, except that by coincidence both those people are me. Here it is exactly the same thing. When I incite someone else’s dog, then he is exempt because he is not at fault, and I am exempt because the dog is not mine. But if I incite a dog that is mine, then I am both at fault and the dog is mine. How can I be exempt from such a thing? If I fail to guard it and it causes damage, I am liable. So if I actively caused the damage, then I would be exempt? How can one say such a thing?

The only way to understand such a law—here I return to what Binyamin wanted to say earlier—it seems to me that the only way to explain this law is as follows, at least regarding horn damage: when the dog causes damage, the one who is liable to pay is the dog. It’s just that you don’t summon a dog to court, and a dog has no money. The liability passes over to its owner. And that is basically the meaning of my being liable for the damages caused by my property. Really, my property is what is liable for payment. It’s just that I, the owner, have the pocket, I own assets, I’m a person, I’m the one who can be sued, so therefore they transfer the claim to me.

Now look—maybe I’ll just bring an example. The Talmud speaks about an ownerless ox that gored, an ox of the wilderness, right? The Talmud says, suppose an ownerless ox gored and now someone came and took possession of it. The Talmud says it won’t help him. The injured party has rights in the ox from before you took possession of it, because an ox that gored pays from its own body—an innocuous ox pays from its own body. So the injured party essentially has rights in the ox before you came and took it. So what does it mean that when the ox was ownerless, it still pays from its own body and therefore belongs to the injured party? Who owes the injured party this payment from the body of the ox? There is no identifiable defendant. You see here that there is a liability on the ox itself. True, if it has owners, then we redirect the liability and sue the owners, but even when it is ownerless, the liability rests on it. That means there is liability on the animal itself—at least, I am saying, in the case of an innocuous ox that pays from its own body; with the other cases it is more complicated.

Now if that is indeed so, look what happens with an incited dog. When I incited the dog, then the dog’s claim is basically: what do you want from me? I was incited. I’m exempt. I’m not at fault; the human made me do it. Once the dog is exempt, there is no liability to transfer to me. After all, why am I liable to pay? Because the dog caused damage, and it becomes liable, except that its liability is transferred to me because I am its owner. But if no liability was created on the dog itself, then there is nothing to transfer to me. It is not because of lack of blame. Of course I am to blame. If I merely opened the door for it, then I would be liable. Why would I be liable? Because then, when the dog went out and caused damage, it could not pin the blame on me. I opened the door for it, but I didn’t incite it. It decided to go out and bite. So there is liability on it, and since I was negligent, they transfer the liability resting on it to me. But if I incited it, then once I incited it, the dog itself is exempt—it is not at fault, because the human made it do it. Consequently there is nothing to transfer to me, because if the dog is exempt, on what basis would they obligate me?

That is the only way I am able to explain to myself this opinion of the later authorities, that even one who incites his own dog is exempt. Now notice: both the Pnei Yehoshua and the Chazon Ish and other later authorities say this law. This fits only with the conception that the liability in damages is responsibility for my property having caused damage; it is not negligence in guarding. If it were negligence in guarding, then here there was ultra-negligence. Obviously one could come to me with a claim. But if I say that the tort liability is because my property caused damage—not negligence in guarding, except that if I was not negligent in guarding then they exempt me—and now I explain it how? I’m basically saying this: really my property that goes and causes damage becomes liable itself; once it becomes liable, they transfer the liability to me, but that is only so long as there was negligence, because if I guarded properly they will not transfer to me the liability resting on it. So you’ll say: fine, then let them take it from the animal, as with an ox sentenced to death—let them take it from the animal and not from me. No, because that comes at my expense, after all it belongs to me. In the case of an ox sentenced to death, when they take it no one personally loses from that, but here, if it belongs to me, then if they collect the payment from its own body, they are harming my rights, because it belongs to me. In effect they obligated me to pay, and I should not have to pay because I guarded properly.

That, basically, is the explanation on the second side of the inquiry. When I speak about liability not because of negligence in guarding but because of the very fact that my property caused damage, except that if I was not negligent then I am exempt, the explanation can be this: that my property itself becomes liable for payment; they transfer that to me, unless I guarded properly, in which case I am exempt. Okay? Now if that is so, then the Pnei Yehoshua and the Chazon Ish both assume this here, because they say this law. So what are they assuming? They are assuming that liability to pay is not negligence in guarding; it is the very fact that my property causes damage. How does that fit with what we saw earlier, that both of them agree that liability to pay is negligence in guarding? Here we learn an interesting lesson about yeshiva-style conceptual inquiries.

Very often—really, always—when people formulate an inquiry, they formulate it as a dichotomy: is it negligence in guarding that obligates, or is it the very fact that my property caused damage that obligates? But the truth is that there is also the possibility that both together obligate. Why assume it is either this and the other is only a condition, or the reverse? After all, everyone agrees both are needed. It has to be mine, and there has to be negligence in guarding. The question is which is the obligating factor and which is merely a side condition. I say: both are primary obligating factors; neither of them is merely a side condition; the combination of the two is what obligates. Now if that is so, let’s try—like I explained earlier—why? Because the liability rests on the ox, but liability cannot be transferred to me unless I was negligent in guarding. So who is the main obligating factor? Both. The fact that it is my property and that I was negligent in guarding together create the liability upon me.

Now what? When I ask the question: on whom does the burden of proof lie? The answer is obviously on the injured party. As long as he does not prove that I was negligent in guarding, he cannot come to me with a claim. Let him come to my ox with a claim—but he cannot take anything from my ox, because taking from my ox harms me. In order to sue me he has to prove that I was negligent in guarding, so the burden of proof is on him. But when I ask the question whether I, if I incited my own dog, would still be exempt, the answer is yes—I would still be exempt, and there is no contradiction. The contradiction arose only because we treated the inquiry as something dichotomous: either negligence in guarding or responsibility for one’s property. But if I say no, it is the combination of both—not either this or that, but the combination of both together creates the monetary liability—then there is no contradiction between these two rulings. On the contrary, I’m showing you that this is so in both the Chazon Ish and the Pnei Yehoshua, so in the end it seems to me that this may even be the more natural explanation.

I want to finish with one more point. I’ve really done this section relatively quickly, but more or less I hope the point is understood. This whole story is just an introduction. Rabbi Dovid Povidarsky wants to resolve this inquiry of the Even HaEzel from the fact that when my property damages someone else, there is also a prohibition involved and not only a duty of payment. We saw that earlier, right? The accepted assumption, both in the Talmud and among the commentators and halakhic decisors, is that there is a prohibition here and there is a duty of payment. Now he says: according to the side that guarding is only a claim of exemption—that is, if what really obligates me to pay is the very fact that my property caused damage—then if I guarded properly they exempt me, so it turns out that I don’t really need to guard. I can choose not to guard. It’s just that if I did guard properly I can be exempt. So how can you say there is a prohibition? From the fact that there is a prohibition it is proven that negligence in guarding is what obligates payment, and not the mere fact that my property caused damage.

But this is not a proof, for two reasons. The first reason is what I said above. After all, when we talk about guarding as a tort basis, we’re talking about guarding in Choshen Mishpat, not about the prohibition. Let’s say the duty of payment is because of the very fact that my property caused damage, not because of negligence in guarding. Negligence in guarding is a claim of exemption. But it does not follow from this that there is no duty to guard. Of course there is a duty to guard. Whoever did not guard violated a prohibition. The question whether this is a basis for a tort claim is another question. Who says it is? It could be that the basis for the tort claim is the fact that my property caused damage. And if I guarded properly, that only exempts me from payment. But the discussion of prohibition is not necessarily connected to the discussion of the tort basis, the legal discussion. Everything I brought in the previous class and also at the beginning of this class.

The second way to reject his proof is what I said earlier—I mentioned it earlier with the idea of one’s animal resting on the Sabbath, if you remember. He assumes that if there is a prohibition against causing damage, or against my property causing damage, that means there is a duty of guarding. There is no other explanation; otherwise, what does it mean that my property goes and causes damage—how is that my prohibition? How do you impose a prohibition on me? My prohibition is only where I failed to guard, because that is my part in the damage. Otherwise, what did I do in this matter? But as I said before, that is not necessary. There can certainly be a conception that the very fact that my property goes and causes damage itself constitutes a prohibition that I am considered to have done, like one’s animal resting on the Sabbath. Therefore it could be that in fact there is no duty of guarding. The claim that I guarded properly is only a claim of exemption, okay? But that has nothing to do with there being a prohibition when my property causes damage. The prohibition is not that I didn’t guard; the prohibition is that my property caused damage. The very fact that it caused damage brings a prohibition back onto me, just as I said earlier regarding liability in the case of an incited dog; I say the same thing now regarding the prohibition. Basically, the prohibition is as though the animal committed it, except that of course there is no point imposing responsibility for prohibitions on animals, so they place it on me. But the prohibition is not that I failed to guard; it is that the animal did the damage, just as we saw earlier with one’s animal resting on the Sabbath. The fact that it carries from a private domain to the public domain—that is my prohibition. Not because I failed to guard it or something like that, but because the very fact that my animal did it—as a kind of extension of me—constitutes my prohibition.

Rabbi Dovid Povidarsky assumes that a prohibition can be defined only regarding failure to guard, not regarding the damage itself, because he assumes the prohibition must depend on, or be connected to, actions that I myself perform. But in Jewish law there are also prohibitions that are defined as prohibitions of result, let’s call it that. Once something happened, responsibility for it is placed upon me. Not the fact that I failed to guard, but the fact that my animal actually did damage. So that is another way to reject Rabbi Dovid Povidarsky’s proof and to disconnect the relationship between the monetary liability and the prohibition—or at least between a certain type of prohibition and the monetary liability.

Okay, I think I’ll stop here. More or less I finished what I wanted. I’ll now send, in connection with the class, two files summarizing the first two classes I gave. I’m putting them both in Moodle and also in the files. I hope in the meantime you saw that it got sorted out, right? The Dropbox. We discussed in the previous class that the Dropbox wasn’t accessible to you, and in the meantime I understood what happened there—it is accessible. If there is still a problem, let me know, but it should be accessible. You know where to find it. Under—what is it called? “Breadth of Knowledge” there, below the table, there are folders for classes of all the lecturers. In my folder you’ll find the classes under the chapter HaKones. I’ll upload it there and also to Moodle. Two files on the first two classes, and I’ll send there some guidance toward the next class—what to do in preparation for the next class.

In the next class we’ll really begin the Talmud at the start of the chapter HaKones, and we’ll talk basically about the duty of guarding—how far a person’s duty of guarding his property extends. You’ll see, this already appears in the Talmud itself. So look at the Talmud itself; that is basically our topic. I’ll upload a guidance sheet both to Moodle and to Dropbox.

Okay. Does anyone have any comments or questions? You were very quiet today. I hope that doesn’t indicate some kind of disconnect. I also want you to tell me if there is any issue with Zoom—too long, not clear, any comment whatsoever—I want you to tell me, I want to learn from it. Okay? Okay, so we’ll stop here. Goodbye.