The Laws of Melachot – Lesson 5
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- The transition from primary categories to derivatives and the framework for Sabbath labors
- Rules of the labors: an introduction to unintentional action
- Three levels in the topic of unintentional action and the historical chronology
- Defining unintentional action through dragging a bench and the basis of the dispute
- Unintentional action is neither inadvertent sin nor coercion: exemption in the act itself, not in the person
- Illustrating “it was unavoidable and he did not intend it” and sharpening the distinction from coercion
- Intention as awareness or as desire, and the link to the philosophy of action
- Inevitable result: “Rabbi Shimon agrees” as a substantive limitation, not just “playing innocent”
- An inevitable result that one does not want: the Arukh, disputes among medieval authorities (Rishonim), and identifying it with a labor not needed for its own purpose
- Unintentional action throughout the Torah: seeing a skin lesion and circumcision, and the implications for the level of prohibition
- “Thoughtful labor” in Rabbi Yehuda’s view: dispute among medieval authorities (Rishonim) and its practical meaning
- Comments on destructive wounding and the scope of the exemptions of “thoughtful labor”
- Halakhic ruling: Rabbi Shimon, inevitable result, and the exception of the She’iltot
- Summary of the practical map and preparation for the conceptual analysis in the next lecture
Summary
General overview
The text argues that the transition from primary categories to derivatives is not a simple expansion, but requires understanding the abstract idea underlying the primary category, and presents this both in the primary categories of torts and in the Sabbath labors. After laying out the general framework, it moves into the “rules of the labors” on the Sabbath and begins with the topic of “unintentional action” as a key principle that applies both to the Sabbath and to the rest of the Torah’s prohibitions. It sketches a three-stage map: the dispute between Rabbi Shimon and Rabbi Yehuda over unintentional action, the limitation of an inevitable result in which “Rabbi Shimon agrees,” and the added category of “an inevitable result that one does not want,” attributed to the author of the Arukh and developed in disputes among medieval authorities (Rishonim). Throughout, it argues that the permission/exemption of unintentional action does not belong to the categories of inadvertence or coercion, but to the definition of the act itself, and it presents sources, halakhic ramifications, and disputes among medieval authorities (Rishonim) regarding the relationship between “thoughtful labor,” inevitable result, and whether the outcome is desired.
The transition from primary categories to derivatives and the framework for Sabbath labors
The text explains that the relationship between a primary category and its derivatives is not trivial, but requires identifying the concept that defines the primary category in order to know what falls under its derivatives. It demonstrates this in the primary categories of torts by explaining that goring is defined by intent to damage and by abnormality, and that “tooth” is defined as damage bound up with benefit, not as narrow categories of “horn” or “tooth” in their literal sense. It presents the same idea in the Sabbath labors through the labor of building, in order to show how derivative laws are drawn from the primary category according to the underlying concept.
Rules of the labors: an introduction to unintentional action
The text presents the “rules of the labors” as broad principles such as unintentional action, a labor not needed for its own purpose, mere preoccupation, indirect causation, and atypical performance, and it begins in practice with the topic of unintentional action. It states that unintentional action is a broad subject that is not limited to the Sabbath, but also appears in the rest of the Torah’s prohibitions, and it raises the possibility that this may be one shared label for two different laws with different definitions.
Three levels in the topic of unintentional action and the historical chronology
The text divides the topic into three planes: the tannaitic dispute between Rabbi Shimon and Rabbi Yehuda over whether an unintended matter is permitted or forbidden / incurs liability, the amoraic statement “Rabbi Shimon agrees in the case of an inevitable result and it will not not happen,” and the early medieval innovation of Rabbi Natan of Rome, author of the Arukh, regarding an inevitable result that one does not want. It emphasizes that this map itself is not agreed upon, and that there is a dispute over whether this is really the order in which the issue should be analyzed. It adds that the concept of “one wants it” is developed in the interpretations of medieval authorities (Rishonim), and that the dispute between Rashi and Tosafot clarifies whether “one does not want it” includes “I don’t care,” or whether it refers specifically to an outcome one actually does not want.
Defining unintentional action through dragging a bench and the basis of the dispute
The text cites the Mishnah and Talmudic text in Beitzah 23b and presents the case of dragging a bed/chair/bench over the ground and creating a furrow. It states that the furrow itself counts as a prohibition — indoors because of building, and in a field because of plowing — and the discussion concerns a case in which the purpose of the action is to move the bench, not to make the furrow. It formulates the dispute: Rabbi Yehuda forbids “a matter that one does not intend,” while Rabbi Shimon permits it “provided that one does not intend to make a furrow.” The dispute is not over whether the furrow is prohibited, but over an act that brings about a prohibited result without intending that goal.
Unintentional action is neither inadvertent sin nor coercion: exemption in the act itself, not in the person
The text argues that unintentional action is not inadvertence, because the person acting is aware of the possibility that the prohibited result may occur, except that the purpose of his action is different. It also argues that unintentional action is not coercion, and that the permission/exemption does not stem from the level of blame or from circumstances of compulsion, but from the claim that an act structured in this way is not defined as the prohibited act. It formulates this as a distinction between arguments about the person and arguments about the act itself, and locates the focus of unintentional action in the question “what happened?” rather than in the question “am I guilty?”
Illustrating “it was unavoidable and he did not intend it” and sharpening the distinction from coercion
The text gives an example from Pesachim about walking on a route that contains the smell of idolatry, and presents a possible permission according to Rabbi Shimon on the basis of “it was unavoidable and he did not intend it.” It argues that the permission is not due to great need or an exemption of coercion, and that even “it was unavoidable” is not a claim of coercion, but a criterion showing that he did not go there in order to benefit from the prohibition, for example when the alternate route is longer even by ten meters. It uses this to reinforce that the discussion of intention is not leniency toward a person, but a definition of an act that does not fall under the prohibition.
Intention as awareness or as desire, and the link to the philosophy of action
The text presents two candidates for defining “intention” in unintentional action: awareness (knowledge/consciousness) versus desire (what I want to achieve). It explains that even if intention is defined as awareness, this is not a claim of “I didn’t know, so I’m not guilty,” but rather that without awareness there is no act defined as the act of an agent. It illustrates this through the philosophy of action — an agent — and expands via analysis of the Talmudic text in Chagigah about “there are those swept away without justice,” and the Talmudic text in Makkot about divine arranging of the inadvertent killer, together with the interpretation that an inadvertent act may be seen as an act that is not “his” in the sense of agency, even if there is negligence involved, in order to distinguish between blame and attribution of the act as agency.
Inevitable result: “Rabbi Shimon agrees” as a substantive limitation, not just “playing innocent”
The text presents an inevitable result through the image of cutting off a chicken’s head for a child to play with, and emphasizes that the claim of “unintentional action” is not ridiculous if it is not based on coercion but on the purpose of the act. It argues that the amoraic statement “Rabbi Shimon agrees in the case of an inevitable result — and will it not die?” is an innovation that limits the permission of unintentional action when the prohibited result is necessary and obvious. It explains that liability in the case of an inevitable result does not necessarily mean that there was intention, but that liability applies despite the absence of intention, as a limitation on the exemption/permission of unintentional action.
An inevitable result that one does not want: the Arukh, disputes among medieval authorities (Rishonim), and identifying it with a labor not needed for its own purpose
The text attributes the concept of “an inevitable result that one does not want” to the author of the Arukh, Rabbi Natan of Rome, and presents a dispute among medieval authorities (Rishonim) as to whether this distinction is accepted in Jewish law. It states that the Shulchan Arukh, straightforwardly, does not rule in accordance with this innovation, and that there are disputes over whether such an inevitable result is completely permitted, rabbinically forbidden, or remains a Torah prohibition. It notes that some identify an inevitable result that one does not want with a labor not needed for its own purpose, thereby creating a category of rabbinic prohibition. It emphasizes that the dispute between Rashi and Tosafot defines whether “one does not want it” includes a state of “I don’t care,” and formulates this as the question whether desirability is a required condition, or whether non-desirability is an exempting condition.
Unintentional action throughout the Torah: seeing a skin lesion and circumcision, and the implications for the level of prohibition
The text cites the Talmudic text in Sabbath 133 about circumcision in the place of a skin lesion, and presents the Gemara’s question: “Why do I need a verse? It is a matter that one does not intend,” and Abaye’s answer that the verse is needed according to Rabbi Yehuda, who forbids an unintended matter. It concludes that according to Rabbi Yehuda, the prohibition of unintentional action is a Torah prohibition, because if it were merely a rabbinic safeguard there would have been no need for a verse. It adds that the case counts as an inevitable result, and therefore even according to Rabbi Shimon it would have been a Torah prohibition without the verse, from which it follows that “Rabbi Shimon agrees in the case of an inevitable result” functions as a rule with Torah-level force. It argues that the discussion of unintentional action appears also in prohibitions unrelated to the Sabbath, and therefore unintentional action is not an exemption dependent specifically on “thoughtful labor.”
“Thoughtful labor” in Rabbi Yehuda’s view: dispute among medieval authorities (Rishonim) and its practical meaning
The text presents a view among medieval authorities (Rishonim) according to which Rabbi Yehuda imposes liability for unintentional action throughout the Torah, but on the Sabbath the prohibition is only rabbinic because of the requirement of “thoughtful labor.” It presents this as an explanation for why Rabbi Yehuda “agrees” on the Sabbath that there is no sin-offering liability, though not because of unintentional action but because of “thoughtful labor,” whereas Rabbi Shimon permits it entirely. It cites the Rashba, via the Shitah Mekubetzet in Ketubot 5, who rejects an understanding that treats Rabbi Yehuda’s prohibition as merely rabbinic, and stresses that the verse concerning the skin lesion proves that it is Torah-level. It then presents the opposite direction, according to which there is no room to distinguish between the Sabbath and the rest of the Torah in the law of unintentional action, and therefore Rabbi Yehuda would impose Torah-level liability even on the Sabbath, and it emphasizes that the practical difference depends on whether the exemption belongs to the category of “thoughtful labor.”
Comments on destructive wounding and the scope of the exemptions of “thoughtful labor”
The text uses the discussion of circumcision on the Sabbath to connect the need for a verse with the assumption that in the case of wounding there is no ordinary exemption for a destructive act, and therefore not every element of “thoughtful labor” creates exemption in such contexts. It notes that if unintentional action were exempt only by virtue of “thoughtful labor,” it would be necessary to examine how that operates in places where the exemptions of “thoughtful labor” do not apply, and it defines this as a practical implication for understanding the views of the medieval authorities (Rishonim).
Halakhic ruling: Rabbi Shimon, inevitable result, and the exception of the She’iltot
The text states that in practice “all the decisors rule like Rabbi Shimon” regarding unintentional action, including Maimonides, and presents the She’iltot as an exception, arguing that we rule like Rabbi Shimon only on the Sabbath because of “thoughtful labor,” but in the rest of the Torah Jewish law follows Rabbi Yehuda. It presents the difficulty of that view as a ruling unlike any single authority, because there is no tanna who makes that distinction within the same dispute, and it suggests a distinction between commitment to the tannaitic “bottom line” and commitment to the reasons given by the tannaim. It illustrates the conceptual possibility of “split” rulings through an example from legal decision-making mechanisms, in order to explain how a ruling may fail to match any one tannaitic view exactly while still relying on a framework of existing permissions.
Summary of the practical map and preparation for the conceptual analysis in the next lecture
The text summarizes that in order to decide any given case, one must first examine whether it is unintentional action, then whether it is an inevitable result, and finally whether it is an inevitable result that one does not want, while noting that this order is not agreed upon. It lists three main possibilities for an inevitable result that one does not want: a return to the permission of unintentional action, a Torah prohibition like an ordinary inevitable result, or a rabbinic prohibition by analogy to a labor not needed for its own purpose. It adds that some views limit the role of desirability to “deficient” labors, and cites the Ritva in Sabbath 103 as an approach that explains desirability as part of the definition of a specific labor rather than as a general exemption. It concludes that clarifying the reasoning behind each distinction will determine how the various views and rulings are classified, and it announces that the continuation of the discussion of the underlying reasoning will open in the next lecture.
Full Transcript
[Rabbi Michael Abraham] We’ve finished outlining the general framework. I spoke a bit about the prohibitions of the Sabbath regarding the labors, about the classification of the labors, about the relationship between primary categories and derivatives. Last time I illustrated this with the labor of building, because there you can get a somewhat fuller, more detailed impression of how one moves from the primary category to the derivatives, what the relationship is between the primary category and the derivatives. You can see there that this relationship is far from trivial; it’s not a simple expansion. You need to understand a bit of the ideas behind the primary category in order to move to the derivatives. We saw this a bit more briefly in the few remarks I made about the primary categories of torts, where we moved from goring to its derivatives, or from tooth and foot to their derivatives, but in a very non-simple way. Meaning, “goring” is not damage done by the thing called a horn; it is anything whose way is to damage intentionally and that is abnormal. Or “tooth” is any damage that is bound up with benefit, with deriving benefit from the thing. So you see that we’re really dealing here with something much more abstract. The move from primary category to derivative is not immediate. You have to understand the idea, the concept, that underlies the primary category, and then you can extend it to the derivatives. I tried to illustrate the same thing with the primary categories and derivatives of the Sabbath. That was the framework. Now we’re really entering into the rules of the labors, and the rules of the labors deal with broad principles: unintentional action, a labor not needed for its own purpose, mere preoccupation, all kinds of things of that sort, indirect causation, all these issues. I spoke about that a little in the opening context. And now the first topic I want to address is unintentional action.
Unintentional action is a very broad subject. We won’t finish it today. Part of what makes it broad is the fact that unintentional action is not stated only with regard to the Sabbath labors or the prohibitions of the Sabbath, but also with regard to the rest of the Torah’s prohibitions. The question is whether it’s the same thing, or whether these are two things that have the same name but different definitions. We’ll get to that. At the conceptual level, if I just want to sketch the general map of the topic of unintentional action, then we’re talking about it on three levels. The first level is: what is the status of unintentional action? That’s the dispute between Rabbi Shimon and Rabbi Yehuda over whether unintentional action incurs liability or exemption, or whether it is forbidden or permitted — we’ll discuss that too. But that’s the first plane. The second plane is what happens to someone who is exempt in the case of unintentional action when the case is an inevitable result. So in an inevitable result, Rabbi Shimon — who exempts or permits even unintentional action — agrees that in an inevitable result there is liability. “Rabbi Shimon agrees in the case of an inevitable result — and will it not die?” And the third plane is what happens when that inevitable result is one that he does not want — meaning, the prohibited result is not desirable to him. So here you have unintentional action, inevitable result, and not wanting the result. By the way, even this map is not agreed upon — that this really is the order of discussion. We’ll talk about that in a moment. But these are three levels at which we have to examine the act we’re dealing with.
Just so we have this in mind: the question whether unintentional action is exempt, permitted, or liable is a tannaitic dispute. That is explicit in the Talmudic text — a tannaitic dispute between Rabbi Shimon and Rabbi Yehuda. The question what happens in a case of inevitable result belongs to the plane of the amoraim. “Rabbi Shimon agrees in the case of an inevitable result — and will it not die?” That’s an amoraic determination. It talks about Rabbi Shimon, but really it’s an amoraic determination. It appears in the Talmudic text, but not in tannaitic sources. The question of desirability — whether he wants the result or doesn’t want the result — does not appear in the Talmudic text either, and that is an innovation of the author of the Arukh, Rabbi Natan of Rome. Some of the medieval authorities (Rishonim) join him, others do not. As a matter of Jewish law, whether we rule like him or not is unclear; there’s a dispute even in later halakhic rulings. The Shulchan Arukh, straightforwardly, does not rule like him, but we’ll discuss that further. So that’s the historical chronology. Understood. No, no — “I care” and “I don’t care” is already Rashi and Tosafot. The question is what happens in a case of an inevitable result that one does not want; what exactly does “one does not want” mean? That’s a dispute between Rashi and Tosafot: does “one does not want” mean “I don’t care” — that anything not positively desired counts as “one does not want” — or does it mean specifically that one actually does not want it, whereas “I don’t care” is not the same as “I do not want it”? That’s the dispute between Rashi and Tosafot.
[Speaker B] The distinction between “I care” and “I don’t care” already appears earlier.
[Rabbi Michael Abraham] It depends — from twigs, we’ll see later. Fine. So that’s with regard to the chronology of the topic, you could say, right? The first plane is tannaitic, the second is amoraic, and the third is already the medieval authorities (Rishonim). Okay? So let’s start from the beginning. First of all, we have to define what unintentional action is. So I’ll start from the Talmudic text — I took the passage in Beitzah; it’s one example.
Okay, so in the Mishnah in Beitzah 23b: Rabbi Yehuda says, “All utensils may not be dragged except for a wagon, because it presses down.” Right, one does not drag utensils over the ground, except for a wagon, because the wagon does not make a furrow; it just presses the ground down. But utensils that make a furrow — thinner or sharper utensils that make a furrow — you don’t drag them. The Talmudic text says: “A child’s wagon can become impure through being trodden upon, because the child leans on it, and it may be carried on the Sabbath because it has the status of a utensil” — and that isn’t important for our purposes — “and it may be dragged only over utensils.” Over utensils, yes; over the ground, no. You don’t drag it over the ground. What is the reason? Because it makes a furrow. Why? Because you don’t drag it over the ground because it makes a furrow. Whose view is this? Rabbi Yehuda’s, who says that a matter one does not intend is forbidden. For if it were Rabbi Shimon — doesn’t he say that a matter one does not intend is permitted? As it was taught: Rabbi Shimon says, “A person may drag a bed, a chair, and a bench, provided that he does not intend to make a furrow.”
Now there in the Talmudic text there are more continuations, because there are contradictions in Rabbi Yehuda’s view and so on. That’s not important for our purposes. I don’t want to get into the details of the topic. I’m using this topic only to present the basic dispute. The basic dispute between Rabbi Shimon and Rabbi Yehuda — this is some sort of baraita, there’s “we learned” or “it was taught” or it’s not entirely clear what exactly it is, but apparently it’s a baraita — in which Rabbi Shimon and Rabbi Yehuda disagree. What is the case? I drag a bed, chair, or bench over the ground — not a paved floor, but ground, meaning dirt — and there is a dispute over whether that is forbidden or permitted. Why? Because by dragging it I create a furrow. Now obviously, if I intend to make the furrow, there is no discussion. But in a case where I drag the bench simply in order to move it from place to place, yet in the course of dragging it a furrow is also created — now, what is that furrow? If it is inside a house, then it is because of building; if it is in a field, then because of plowing. But bottom line: the assumption is that making the furrow is prohibited. So what then? Here I didn’t do it in order to make a furrow. I did it in order to move the bench. The furrow was created unintentionally. That is the example of unintentional action. And regarding that, there is a dispute between Rabbi Shimon and Rabbi Yehuda.
Rabbi Yehuda says that unintentional action is forbidden. “Forbidden,” again, can be interpreted as exempt but forbidden, or as outright liable — there’s a dispute among medieval authorities (Rishonim). But at the conceptual level, it is forbidden. And Rabbi Shimon says that a matter one does not intend is permitted. “Permitted” means fully permitted — not even a rabbinic prohibition. Okay? So that is the dispute between Rabbi Shimon and Rabbi Yehuda regarding unintentional action. Notice: making the furrow itself is certainly a prohibition — that is not the dispute. The dispute is over what happens when I did it, when the act I performed was not done for the sake of the furrow but for a different purpose, yet a furrow was also created. I didn’t intend that, but that’s what happened, that’s how it came out. So the question is whether this is permitted or forbidden. That is the dispute between Rabbi Shimon and Rabbi Yehuda, at a general conceptual level. Yes. The measurements… never mind, building — what exactly is the building? You make some little furrow there, you’ve added some amount of volume to the house, and that counts as building. And regarding plowing, some speak about whether it is enough to put seed there; there may be some tiny minimum measure, meaning it is not a problem to impose liability in terms of the requisite measure involved.
So here are a few comments about this. First of all, one has to distinguish unintentional action — and this is very clear conceptually, but very easy to get confused about in ordinary thinking, in the course of the discussions if you’re not paying attention. Unintentional action is not inadvertence. Meaning, he knows that a furrow may be made. It’s not that he doesn’t know; it’s not that he’s surprised — suddenly, whoops, a furrow was made, he had no awareness at all of that possibility. He is aware of that possibility; he knows that a furrow may be made here. But the purpose of the action is not making the furrow. The purpose of the action is moving the bench from one place to another. Okay? So that’s the first very important point: unintentional action has nothing to do with inadvertence. Completely different category. More than that: unintentional action also has nothing to do with coercion. It’s not that I didn’t mean to, I was forced, and suddenly a furrow was made — what can I do? No. Even the exemption of unintentional action, according to the one who exempts — such as Rabbi Shimon, who holds that it is permitted — or if Rabbi Yehuda also exempts on the Sabbath and it is only a rabbinic prohibition, it doesn’t matter — but even the exemption or permission of unintentional action is not a permission from the category of coercion. It’s not: you’re not guilty, so what can be done. No. I knew that a furrow could be made, and I acted on that basis. I have no claim of coercion, nor inadvertence, nor anything else. The reason why I am exempt, or why it is permitted, is because such a thing is not a prohibited act. These are not arguments about the person — about coercion or about the level of blame. This is a very important point. These are not arguments that concern the level of the person’s guilt, in the subject. These are arguments in the act itself. Meaning, the action itself is not a prohibited Sabbath action. That is the claim. No — an action done in this way is not, to begin with, a prohibited action. It’s not that I exempt you because you’re not guilty. This is not an exemption in the person. It’s an exemption in the action itself. An action done in this way is not a prohibited action.
Obviously, when I talk about a prohibited Sabbath action, it is not detached from the person. If a non-Jew does the same action, then it is entirely permitted, right? So obviously it is not detached. But still, the focus is on the question whether a prohibited action occurred, not whether I am guilty for what happened. The question is what happened. All right? The focus of unintentional action is the question what happened, not whether I’m guilty of something. Therefore, leave out inadvertence, coercion, all kinds of these exemptions where we forgive you and so on. That is not relevant. Okay?
Sometimes this exemption of unintentional action seems really outrageous or hard to understand. Look, there’s a Talmudic text in Pesachim, for example. The Talmudic text there discusses “it was unavoidable and he did not intend it.” I’ll comment on that Talmudic text, because it ties this to the dispute between Rabbi Shimon and Rabbi Yehuda about unintentional action. For example, imagine a case where I need to go somewhere. On the way there is a shop that gives off the smell of idolatry. All right? Am I allowed to walk in that direction? It is forbidden to smell idolatry — that’s an accessory to idolatry, meaning, according to some views, one must be killed rather than transgress. But the Talmudic text says there that according to Rabbi Shimon it is permitted to walk there. And not only is it permitted to walk there, in the simple understanding you don’t even have to block your nose. Again, as a matter of Jewish law one has to discuss it, but in the simple understanding, you don’t even have to block your nose. Why not? Because you are not going there in order to smell it. You are going there because you need to get somewhere. Again, not that it’s essential to get there, but you want to get there — to buy something, to have fun, I don’t know, something. Okay? Not an essential need that would permit the smell of idolatry, and nothing like that. So people sort of don’t understand: what, how can that be? The answer is that this is not an exemption of coercion, where you’re not guilty and we permit it because there is a great need. It’s not from that family at all. Rather, unintentional action is simply not a prohibition at all. You didn’t commit a prohibited act, so what’s the problem?
Yes, I once wrote an article about watching movies that have sections in them that are problematic in terms of modesty and the like. And I argued that it is permitted. Permitted what? To go to such a movie.
[Speaker C] Without covering your eyes in the relevant sections?
[Rabbi Michael Abraham] No, you don’t need to. No, it’s not halakhically required. Whoever wants to, blessings on him, but I’m discussing this halakhically right now. At the halakhic level, no. In my opinion you’re not required even then. Why? Because it is unintentional action: it was unavoidable and he did not intend it. What does “it was unavoidable” mean? What do you mean, unavoidable? Cover your eyes, don’t go to the movie, go to a different movie, or I don’t know, read a book. Fine — what does “it was unavoidable” mean? When you look at the Talmudic text in Pesachim, you see that “it was unavoidable” — the medieval authorities (Rishonim) talk about it there — “it was unavoidable” means, for example, that I’m going on this route with the spice shop; that’s not the example there, the example is from idolatry, but in the Talmudic text in Pesachim the medieval authorities (Rishonim) bring it, and they say that in a case where the second route is longer by ten meters, that is called “it was unavoidable.” Not that I’m coerced and have no choice — well, what can I do, I have to live, I buy food there, otherwise I’ll have nothing to eat. No. Go on the longer route — what’s the problem? Walk another ten meters. No, you’re not required. That is called “it was unavoidable and he did not intend it.” What does “it was unavoidable” mean? There, “it was unavoidable” is not a claim of coercion. Rather what? I’m getting a bit ahead of myself, but that’s in order to sharpen the important opening point here. “It was unavoidable” means: if you took this route and there is another even shorter route available, then don’t tell me that you took this route because you wanted to get to the shop and not because you wanted to smell the idolatry. You went for that reason, because otherwise you would have chosen the other route. But if the other route is longer by ten meters, then when I walk on this route, I say: I went on it because it’s shorter. True, I could have taken the other route to avoid the smell of idolatry, but you can’t say that I went there in order to smell idolatry. I went there because it’s shorter by ten meters. That is called “it was unavoidable.” And then that means — it proves — that I am unintentional. “It was unavoidable and he did not intend it” means that if it was unavoidable, therefore one can relate to me as not intending. And that very sharply brings out the point that “not intending” here is not a claim of coercion. Because what coercion? Walk another ten meters — what’s the problem? It’s not hard. “It was unavoidable” here is just a criterion that verifies that you do not intend it. That’s all. Why? It’s rabbinically forbidden. What difference does that make? But there is still a Torah-level permission. No, there is still a Torah-level permission. Leave aside why the rabbis forbade it — that’s another issue, if the rabbis forbade it. But straightforwardly, according to Rabbi Shimon, no — it’s not forbidden, it’s permitted. According to Rabbi Yehuda there is a discussion whether there is liability or only prohibition. According to Rabbi Yehuda it is permitted — that’s what it says here, an unintended matter is permitted. But according to Rabbi Shimon — sorry, yes. But what I’m saying does not depend on that. I’m talking about the question that any permission you speak of, whether it is a Torah-level permission but rabbinically forbidden, or whether it is fully permitted, the permission is not based on coercion. It is not a permission about the person that says we permit this to you because there is a great need, or because you were coerced, so we exempt you due to coercion, or things like that. No. The permission is because this is simply not the kind of act that was prohibited. That is a point that is very important to understand.
So we’ll discuss more whether this is tied to the law of “thoughtful labor,” and according to whom and what that means. Of course we’ll discuss that. But right now I only want to speak generally about unintentional action, and notice: unintentional action is stated with regard to all Torah prohibitions, not only the Sabbath labors. Therefore straightforwardly it is not connected to “thoughtful labor.” There is some general exemption of unintentional action. Okay? Throughout the Torah. If you don’t intend it, it is not a prohibition. All right? Now fine, if he benefits from it, then maybe there is the category of benefit, and here one starts entering the relationship to mere preoccupation. I’ll get to that later. But at the conceptual level, right now I just want to put the tools on the table. Okay? So at this level, one has to know that unintentional action is not an exemption of coercion. It is not an exemption of the person due to coercion, but rather it is not a prohibited act. It is permission from the outset. An exemption from the outset, a Torah-level permission and maybe rabbinically forbidden, but from the outset it is simply not the prohibited act. Okay? That is a point very important to understand.
Okay. Now we need to understand, on all three planes, several things. On the first plane of the dispute between Rabbi Shimon and Rabbi Yehuda — or in defining the concept of unintentional action itself — what is the intention we are talking about? At the conceptual level there are two candidates here, two candidates for defining the intention we are talking about. Is intention awareness, or is intention desire? Right? Does “he did not intend” mean “I did not know,” which comes very close to an exemption of coercion — I didn’t know, I’m not guilty? But no. Unintentional action is not an exemption of coercion. If I didn’t know, then it is not forbidden. That too, even if I say that what is meant here is awareness — the awareness here does not function on the plane of “I’m not guilty because I didn’t know, forgive me.” Inadvertence, coercion, something like that. No. Awareness is a condition for defining the action as a prohibited action. And if there is no awareness, then there is no distinction — no awareness, no differentiation, as they say. Meaning, if there is no awareness, then you cannot impose liability on him not because he is not guilty, but because he did not do the prohibited action.
In philosophy, there is an entire field in analytic philosophy called the philosophy of action. And there they discuss the definition of an agent. That is: when are you considered a person who performed an action? Again, it’s not on the level of coercion, of when you are guilty. Rather, when can this be considered an action of an agent, an action of a rational person who chose, deliberated, and made decisions? If he didn’t know, then the point is not that he is exempt because he was coerced or because he is not guilty. Rather, there was no action of an agent here at all. There is nothing to talk about. You did not function here as an agent. Okay? Maybe I’ll give you an example specifically from the world of inadvertence. But I think it sharpens this quite well.
There is a Talmudic text in Chagigah — this is just in parentheses, just to sharpen the point. In the Talmudic text in Chagigah, the Talmudic text says there: “There are those swept away without justice.” Meaning, a person can die without being guilty, without deserving to die. It’s not that Heaven decided he should die; rather, he simply dies because that’s what happened. Now there, the Rakh in Chagigah says: “There are those swept away without justice,” for example a person whose fellow killed him. Meaning: how can it be that a person is swept away without deserving it, without the heavenly court having decided that he must die? If someone else decided to murder him. Meaning, natural death is presumably the result of a decision of the Holy One, blessed be He. Let’s say. I don’t think even that is true, but let’s say — at least that’s what the Talmudic text there says. But with a death that depends on the choice of another person to kill you, that can happen even if the Holy One, blessed be He, did not decide that you deserve to die. A person has free choice, and if he decides to kill you, he may succeed. Not certain, but he may succeed. “There are those swept away without justice.” The Holy One, blessed be He, does not always intervene. Okay? That’s on one side.
On the other hand, the Talmudic text in Makkot 10 says there: what is a case of an inadvertent killer? The Talmudic text says: for example, a murderer intentionally and a murderer inadvertently — this one deserves death and that one deserves exile — the Holy One, blessed be He, brings them to the same inn. The intentional murderer is below, the inadvertent killer is above, and then the iron slips from the wood of the one above and kills the fellow below. The one below, who deserved death, received his death, and the one above, who deserved exile, will now receive the exile that he deserves. All right? That of course always raises the question how the first liability to exile was created. The initial obligation of exile happened to him without his having deserved exile earlier, so how was he brought to this inn? Fine, let’s leave those acrobatics aside for the moment, but that’s what the Talmudic text says.
The question is how this fits, and whether it fits, with the words of Rava and with the Talmudic text in Chagigah 5. Because the Talmudic text in Chagigah says that if a person kills his fellow, then this does not come from above; it is the person’s own decision. Okay? So apparently that is the person’s own decision, and not connected to decisions of the Holy One, blessed be He, from heaven. It can happen even to a person who does not deserve to die. But here the Talmudic text assumes that if a person died, it is apparently because he had already deserved death — meaning, the Holy One, blessed be He, arranged it. The simple answer, of course, is that one case is intentional and the other is inadvertent. What do you mean? If you do it intentionally, that is your choice; you decided to kill a person. You may succeed even if the Holy One, blessed be He, did not determine that he deserves death, because you have free choice. It may be that the Holy One, blessed be He, will also intervene, but it may also be that He won’t. Right? That’s the claim. There are those swept away without justice — not that everyone swept away is swept away without justice. All right? In contrast, in the case of inadvertence, what happens there? When the iron slips from the wood, then I did not really decide to kill the one below. It happened through me. It’s not that I made a decision about him. I was not an agent, right? And then, in effect, you can’t say that it happened to him because I decided it, because I didn’t decide it. So why did it happen to him? Apparently here the Holy One, blessed be He, arranged the matter, and therefore it happened to him because he really did deserve death.
And that in fact means that there are cases where, even if a person did the action, it is really an action done by the Holy One, blessed be He. The person was not the agent; he did not decide to do that thing, so this is not his action. It is the action of the Holy One, blessed be He. He was the axe used by the Holy One, blessed be He, to kill the person who deserved death, but the person here functions as an axe, not as an agent, as an instrument, even though he is a human being. Okay? In this case it’s like taking a person and swinging him to kill someone else — in other words, using him as a hammer to kill someone else. So I’m not going to say here that this person killed the other one under coercion. He did not kill him at all. Let’s say a person who causes damage is liable even under coercion, right? So if I take a person — “a person is always forewarned” — and I use him, and with him I smash your jug like this, would he be liable? A person who causes damage is liable even under coercion. The answer is no. Why not? Not because he is coerced at all; rather because this is not his action. Coercion is when it is your action but you were forced to do it — they threatened you with a gun. But here it isn’t your action at all. When you are liable, that is when you acted as an agent. But when this is not your action at all, then even if a person who causes damage is liable under coercion, you would be exempt. You would be exempt why? Not from the family of coercion, not because there are arguments that you are not guilty. This is simply not your action, so there are no claims here that obligate you at all. You don’t need to raise exemption claims. There is no claim here to begin with that you are liable, because you didn’t do it — your body did it. All right? So that is an illustration of what I mean here.
Where? Yes, correct. That’s why I said that I’m taking this example from the world of inadvertence. But what stands behind it is the distinction in terms of the relation to Heaven, not in terms of the question whether you are guilty. Whether you are guilty — there is some guilt, because you were negligent. You are not even considered coerced; you are considered inadvertent. But in terms of the question whether you did it or the Holy One, blessed be He, did it — the theological question — I say that since you were not an agent here, this is an act of the Holy One, blessed be He, not yours. Okay? There’s another question regarding awareness.
[Speaker C] Let’s say in the case of the furrow — what? He didn’t know there would be a furrow?
[Rabbi Michael Abraham] I didn’t say he didn’t know.
[Speaker C] I said the question is — no, so I’m saying, we said there are two possibilities.
[Rabbi Michael Abraham] Right. There are two ways to understand what “not intending” means in these passages. There are two possibilities, and we’ll encounter them. One possibility is that he didn’t know. It’s a matter of awareness: he didn’t know this was going to happen. Distraction. He knows that dragging a wagon is not— no, he wasn’t aware of it, he thought it was ground, that it was— sorry. Right? There, the space in which… No, what is the middle? I didn’t understand what the middle is. No, whether it is beneficial to him depends on that, but it depends on it on the third plane, the question of whether it is beneficial to him. Right now I said there are three planes. You can say that the added condition of whether it is beneficial goes back to the plane of intention and defines intention differently. No, that can be. If you say that whether it is beneficial plays a role in liability according to the Arukh, you can explain that it goes back to the plane of intention and defines it differently, and it requires benefit because that is what defines intention; therefore it requires benefit. But right now I’m dividing the discussion into three different planes. When we get to whether it is beneficial, we’ll see whether it goes back or doesn’t go back. I have three different planes. The first plane is the question of “not intending.” What does “not intending” mean? Does it mean you didn’t know, or does it mean you didn’t want? Yes, not “couldn’t”—what’s called “didn’t want.” In other words, yes, the question is whether you didn’t know or you didn’t want. That is one level of discussion; it belongs to the first plane of the discussion. Right now I’m only sketching the framework of the discussion. On the explanatory level it could be that the third plane goes back to the first, but the first plane of the discussion is the plane of intention. I have to discuss whether there was intention here or not, and then I ask myself what counts as intention—knowledge or desire. Okay? The second plane: there was no intention here, whatever intention means, it doesn’t matter, but I reached the conclusion that there was no intention. Now we have to discuss: fine, but maybe this is an inevitable result? What is an inevitable result? The concept of an inevitable result comes from the Talmud, yes, which speaks about someone who wants to give his son something to play soccer with. So he takes a chicken, cuts off its head, and gives the head to his son so he can play soccer with it. Okay? And then he says, look, I had no intention. Why? Because I didn’t intend to kill the chicken. It died on me—what can I do? The Holy One, blessed be He, is to blame; He decided that a chicken without a head can’t live. All I wanted was to give my son something to play soccer with. Now that sounds very funny, right? But actually, not at all. If we remember that “not intending” is not a claim of duress—if the claim were duress, fine, that’s ridiculous. I mean, what do you mean duress? What, you didn’t know it would die? You’re not responsible for the fact that it died? You killed it. What do you mean no? You killed it in order to give the head to your son to play soccer with, but you can’t say you weren’t responsible. But if the claim of “not intending” doesn’t belong to the family of duress, and instead belongs to the question of what purpose I did the act for—that’s the question of intention, right? Or whether I knew, let’s say. If someone didn’t know that the chicken would die—well, that’s already more far-fetched, but theoretically that too could happen. So if it’s on this plane, then that is a possible claim. Fine. So I did it in order to give him the soccer ball, not in order to kill the chicken. I knew the chicken would die, I knew, I intended, everything is true, but that’s not why I did the act. So I am “not intending.” Here comes the second innovation. The second innovation is: Rabbi Shimon concedes in a case of “cut off its head and will it not die?” In other words, you cut off its head and it won’t die? Of course it will die. So what? That is not a relevant claim, because I still did not intend it, since that is not why I did it. Therefore, “cut off its head and will it not die?” is presented as though it were some obvious argument: what are you trying to tell me, that you didn’t know it would die, or you didn’t want it to die? You understand that if you cut off its head, it will die. No, that’s not the claim. This is not a trivial innovation, that Rabbi Shimon concedes in a case of an inevitable result. The idea is not that if I didn’t intend it, then this wasn’t a prohibited act—this isn’t some kind of naivete saying, I didn’t know, I was under duress. No, that’s not the point. There was an act here that wasn’t prohibited at all. What do you want? There is an additional innovation, and that’s why it’s an innovation, not something simple: if it is an inevitable result—that is, if the result is necessary and clearly will happen—then you are liable even though you didn’t intend it. Not that this means you did intend it, apparently—we’ll still see—but rather you are liable despite not intending it. It’s a qualification on the exemption of “not intending.” Just a moment, we’ll get there in a minute; clearly there can be a connection between the things, I’m just presenting the… So that is the question, that is the second innovation, that in a case of an inevitable result Rabbi Shimon concedes. According to Rabbi Yehuda, apparently all this is irrelevant. Why? Because Rabbi Yehuda holds you liable even without an inevitable result; he does not exempt in a case of “not intending.” But it can be relevant also according to Rabbi Yehuda, and we’ll see this, because there are opinions that Rabbi Yehuda, in the laws of the Sabbath, does exempt one who did not intend. Not permit, but exempt. Why? Because the Torah prohibited only purposeful labor, which does not exist elsewhere in the Torah, but in the laws of the Sabbath it does. That is why I first discussed purposeful labor, so that we should know there is something unique about the Sabbath, namely the definition of purposeful labor. And there are medieval authorities (Rishonim) who claim that according to Rabbi Yehuda, in the rest of the Torah one who acts without intention is liable; he has no exemption of “not intending.” But in the laws of the Sabbath even he agrees with Rabbi Shimon that there is no Torah prohibition, because it is not purposeful labor. And in the laws of the Sabbath there is an additional requirement beyond the rest of the Torah that it be purposeful labor, and then according to Rabbi Yehuda in the laws of the Sabbath it is only a rabbinic prohibition. In the rest of the Torah it is a Torah prohibition; in the laws of the Sabbath it is a rabbinic prohibition. And now the question arises: what happens if it is an inevitable result? So here we’ll see there are different opinions. On the simple reading, apparently,
[Speaker E] if Rabbi
[Rabbi Michael Abraham] Shimon holds one liable, then Rabbi Yehuda certainly holds one liable. But there are those who want to say no—Rabbi Yehuda owes Rabbi Shimon nothing. Rabbi Shimon—Rabbi Yehuda—what he exempts in the laws of the Sabbath is on account of purposeful labor. An inevitable result does not solve the problem of purposeful labor; an inevitable result solves the general problem of “not intending.” But in the laws of the Sabbath that is irrelevant; in the laws of the Sabbath the exemption is because of purposeful labor. That’s not relevant; even in a case of an inevitable result it will still only be a rabbinic prohibition. Okay? So we’ll still see that. That is the second plane of the discussion: the plane of the inevitable result. The third plane of the discussion is the addition of the author of the Arukh. And that is apparently built on the first two planes. In other words, if one did not intend, then according to Rabbi Yehuda he is liable; according to Rabbi Shimon it is permitted. Okay? An inevitable result brings us back, according to Rabbi Shimon, to being liable. According to Rabbi Yehuda, simply speaking, that is not relevant, but perhaps in the laws of the Sabbath it is. Okay? According to the Arukh, if it is not beneficial to me, then even if it is an inevitable result I am exempt. Or it is permitted, or exempt—there are also disputes among the medieval authorities (Rishonim). About everything here there is a dispute among the medieval authorities (Rishonim); there is almost nothing here that is agreed upon. Okay? But if it is not beneficial to me, that is why this is the third plane. Notice: this issue arises only according to Rabbi Shimon when it was a case of “not intending” but of an inevitable result, where then I am liable, and then a further question arises: was it beneficial? If it is beneficial, then you really will be liable. If it is not beneficial, then the inevitable result will not make you liable. Therefore, benefit is the third plane of the discussion. On the simple reading—and in a moment we’ll see it’s more complicated—but on the simple reading, benefit is the third plane of the discussion. So you have to get used to this all the time: when I want to discuss what the law is in a certain situation, I have to examine, first, whether there was intention here—whether it is a case of “not intending.” After that I have to discuss the question of whether it is an inevitable result, and finally I have to discuss the question of whether there was benefit here. Each of these conditions can either exempt or even permit. If I did not intend, then apparently it is permitted—unless it is an inevitable result, in which case I will be liable—unless it is not beneficial to me, in which case even with an inevitable result it is permitted or exempt. Okay? There are those who identify an inevitable result that is not beneficial with labor not needed for its own sake—that an inevitable result that is not beneficial is labor not needed for its own sake, the same thing. There are all kinds of things here; the concepts here are terrible concepts, and that is why I’m spending a lot of time trying to create some order. And I’m already putting a warning note on the side: this order is not agreed upon. Even the order is not agreed upon. Okay? So we’ll talk more. Okay, now I’m beginning. So we begin the discussion on the first plane, that of “not intending.” Okay? Let’s see what happens there. First stage, I need to convince you that this discussion is not only in the laws of the Sabbath. We saw—the example we saw is in the laws of the Sabbath. Someone drags a bench and, unintentionally, a furrow is made. There we already know that this is when it is not an inevitable result and also not beneficial to him, because otherwise it would in any case be prohibited. But that is just a side remark; right now I’m ignoring it, I’m dealing only with the first plane of intention. So we saw the example in the laws of the Sabbath. Someone drags a bench for a certain purpose, a furrow is formed, so it is a case of “not intending”—a dispute between Rabbi Shimon and Rabbi Yehuda. What about other areas of Jewish law that are not the laws of the Sabbath? I would expect this to depend on the question whether this exemption belongs to the family of purposeful labor or not. Right? If “not intending” is exempt because of purposeful labor, and we spoke about that quite a bit, then I would expect it to exist only on the Sabbath. But in the rest of the Torah, even if you did not intend, you would be liable; even Rabbi Shimon would agree that you are liable. But if this exemption does not belong to purposeful labor, then there is room to say that this applies not only in the laws of the Sabbath but throughout the Torah. Now in fact, Rabbi Shimon—apparently. Later I’ll qualify it, but that is how it seems at first glance. How do I see that? I’ll bring one or two examples. There is a passage in Tractate Shabbat 133, on the topic of circumcision there and the fringes that are indispensable and all those things there on that page. The Master said: “Flesh—even though there is a bright spot there, he should circumcise.” Right? There is a prohibition against cutting off a bright spot; if you have a bright spot, which is a kind of leprous mark, if you have a bright spot it is forbidden to cut it off. That is a Torah prohibition, a Torah-level prohibition against cutting off a bright spot. Okay? What happens if I need to circumcise the child and he has a bright spot there? Right? So there is the whole famous discussion there of a positive commandment overriding a prohibition, all kinds of things like that. So the Talmud says: “Even though there is a bright spot there, he should circumcise”—these are the words of Rabbi Yoshiya. Ah, why do I need a verse for that? It is a matter of “not intending,” and something done without intention is permitted. What does that mean? He is circumcising for the commandment of circumcision, not in order to cut off the bright spot. In practice, the circumcision also cuts off the bright spot. That is like dragging a bench and making a furrow, right? One moment, we’ll see in a second. But first of all, it is a case of “not intending,” right? Therefore the Talmud says: obviously, what is the novelty? You need a verse for this? They bring a verse there. You need a verse for this? It is something done without intention. Okay? Abaye said: It was only necessary according to Rabbi Yehuda, who says that something done without intention is forbidden. Notice here: something… the verse is needed to permit circumcision when there is a bright spot only according to Rabbi Yehuda, because according to Rabbi Yehuda I would forbid it without the verse, because something done without intention is forbidden, and therefore the verse is needed to permit it. Is it forbidden according to Rabbi Yehuda at the Torah level or at the rabbinic level? At the Torah level, right? Absolutely. Because otherwise we would not need a verse to permit it. So here we already gain from this passage that according to Rabbi Yehuda, when he says something done without intention is forbidden, he means forbidden at the Torah level, not exempt but forbidden. Wait, wait, we’ll see in a moment. Not exempt but forbidden—that means forbidden by Torah law. Many times the expression “forbidden” can be interpreted as “exempt but forbidden.” Okay? So that is what Abaye says. Now here we are dealing, after all, with an inevitable result. Why is it an inevitable result? Because if I cut this, clearly the bright spot will be cut off. After all, you cannot cut there without the bright spot; it’s not that by chance it came out that way. Any cutting would also remove the bright spot, right? Therefore this is an inevitable result. And in an inevitable result, Rabbi Shimon also concedes that it is forbidden. Sorry—in an inevitable result, Rabbi Shimon also concedes that it is forbidden, and therefore if this verse is required according to Rabbi Yehuda, then this verse is also required according to Rabbi Shimon, because in an inevitable result Rabbi Shimon also concedes. Notice: Rabbi Shimon too, if so, agrees that an inevitable result is not a rabbinic prohibition but a Torah prohibition, right? So we already have two conclusions that we can learn from the Talmud here: first, that Rabbi Yehuda, who forbids “not intending,” means a Torah prohibition. Second, that Rabbi Shimon, who concedes to Rabbi Yehuda in the case of an inevitable result, also concedes and says that this is a Torah prohibition, not a rabbinic prohibition—because otherwise we would not need a verse to permit circumcision. Does Abaye not hold this reasoning? What, Abaye doesn’t agree that Rabbi Shimon concedes in a case of an inevitable result? But Abaye and Rava both said: Rabbi Shimon concedes in a case of “cut off its head and will it not die?” After he heard it from Rava, he adopted it. Right? After he heard it from Rava, his eyes were opened, he accepted this idea, and from then on both Abaye and Rava agree: “cut off its head and will it not die?”—yes, Rabbi Shimon concedes in a case of “cut off its head and will it not die?” For our purposes, practically, in the bottom line, what emerges is this: there is a verse that permits circumcising when there is a bright spot, and there is a prohibition against cutting off the bright spot. The prohibition here, were it not for the verse, would be a Torah prohibition according to both Rabbi Yehuda and Rabbi Shimon. According to Rabbi Yehuda because something done without intention is forbidden by Torah law; according to Rabbi Shimon because in an inevitable result he concedes that it is forbidden by Torah law. Okay? But according to both of them it is now prohibited, and therefore a verse is needed to permit it. Now what prohibition is the verse permitting? What prohibition did we violate here? Cutting off the bright spot. This is not a Sabbath prohibition. It is a regular prohibition, yes, cutting off a bright spot. It has nothing to do with purposeful labor, right? Which means that the exemption of “not intending,” were it not for the inevitable result, the exemption of “not intending” applies throughout the Torah, not only to Sabbath prohibitions, right? Therefore here we have to arrive at the category of inevitable result, because otherwise there would have been an exemption here of “not intending.” Why? After all, these are not Sabbath prohibitions. We see that “not intending”—and this is the third lesson we learn from the passage here: first, that according to Rabbi Yehuda, “not intending” is at the Torah level. Second, that Rabbi Shimon’s concession in a case of inevitable result also creates a Torah-level prohibition. Third, that “not intending” applies also in ordinary areas of Jewish law, not only in the laws of the Sabbath. In other words, “not intending” is not an exemption from the family of purposeful labor, right? And indeed—what? The Divine Name, that he entered the water, and what about that? He caused the erasure of the Divine Name—the Talmud in the discussion of all the sacred writings, yes. And from there they challenge Rashi, who in Bava Kamma 60 says that indirect causation is permitted—indirect causation is forbidden because the Torah prohibited only purposeful labor—and there they say indirect causation is permitted; a contradiction between passages, and these are long discussions. Now, what happens in the laws of the Sabbath? On the face of it, I would say nothing. Nothing different in the laws of the Sabbath. In other words, if the exemption of “not intending” does not belong to the topic of purposeful labor, then in the laws of the Sabbath it is like every other area in the Torah. “Not intending” will be a dispute between Rabbi Shimon and Rabbi Yehuda—Torah prohibition or completely permitted—and it has nothing to do with purposeful labor, right? But there are medieval authorities (Rishonim) who hold that on the Sabbath the prohibition of “not intending” is only rabbinic. Because there is an exemption of purposeful labor. Now notice: they are speaking within Rabbi Yehuda’s view, because within Rabbi Shimon’s view it is permitted. And it is permitted throughout the Torah, so obviously it will also be permitted on the Sabbath, right? On the Sabbath there is only one more possible ground for leniency, because the Torah prohibited only purposeful labor. In indirect causation it works stringently, but in “not intending” it works leniently. Yes, because since the Torah prohibited only purposeful labor, then on the Sabbath “not intending” will be more lenient than in the rest of the Torah. Therefore, if Rabbi Shimon permits it throughout the Torah, there is nothing to discuss regarding the Sabbath; obviously on the Sabbath he also permits it. Rabbi Yehuda, who forbids “not intending” at the Torah level throughout the Torah—let’s speak right now about “not intending” without an inevitable result, yes?—he forbids “not intending” throughout the Torah at the Torah level. What happens on the Sabbath? There are medieval authorities (Rishonim) who claim that what Rabbi Yehuda forbids on the Sabbath is only rabbinic. Therefore the expression “Rabbi Yehuda forbids,” which appears in this passage as well, even though this is not speaking about the laws of the Sabbath, is just a habitual turn of phrase. In truth Rabbi Yehuda forbids because we are used to relating to Rabbi Yehuda in the laws of the Sabbath. And in the laws of the Sabbath he only forbids; he does not make one liable to a sin-offering. But now we already have this kind of language that Rabbi Yehuda forbids in a case of “not intending.” Even though in the rest of the Torah, where it is not connected to purposeful labor, it is a Torah prohibition; it is not “exempt but forbidden.” But they say “forbids” because we are used to this dispute mainly in the laws of the Sabbath. Okay, so that is what various medieval authorities (Rishonim) say—Rashi and Tosafot in several places, and Ritva and others—that on the Sabbath the prohibition is only rabbinic. And Tosafot indeed say: because on the Sabbath there is the rule of purposeful labor. So it comes out like this: according to Rabbi Shimon, “not intending” is completely permitted, both on the Sabbath and throughout the Torah, right? According to Rabbi Yehuda, “not intending” throughout the Torah is forbidden by Torah law. On the Sabbath there is an exemption, but not Rabbi Shimon’s exemption of “not intending”; rather an exemption of purposeful labor. It is called “not intending,” but in practice it is not because of the rule of “not intending”; it is a rule of purposeful labor. When you do not intend, in the laws of the Sabbath you have an exemption not because of the rule of “not intending,” because according to Rabbi Yehuda there is no such exemption. You have an exemption because of purposeful labor. This is not Rabbi Shimon’s rule of “not intending.” Meaning, when Rabbi Yehuda agrees with Rabbi Shimon in the laws of the Sabbath—agrees partially, because he forbids rabbinically while Rabbi Shimon permits entirely—meaning, when Rabbi Yehuda supposedly agrees with Rabbi Shimon, it is not for the same reason. He does not accept “not intending”; there is no exemption of “not intending.” It is an exemption of purposeful labor in the laws of the Sabbath. Okay? What happens according to Rabbi Shimon? According to Rabbi Shimon, it may be that there is a double reason for exemption. I’m not saying he disagrees with Rabbi Yehuda; it is simply superfluous. According to Rabbi Shimon, “not intending” has an exemption throughout the Torah, so certainly it is also an exemption on the Sabbath. It is true that even if there were no exemption of “not intending” throughout the Torah, on the Sabbath Rabbi Shimon would exempt because of purposeful labor. Maybe, yes? Why not? Why assume that there is yet another dispute between them regarding the parameters of purposeful labor? We know they have a dispute in the laws of “not intending.” But why assume that they also have a dispute regarding purposeful labor? It may be that they do not. And perhaps there will be practical implications of this in places where the ordinary exemption of “not intending” does not apply, but on the Sabbath there may be an exemption because of purposeful labor according to Rabbi Shimon, and then it would be prohibited only rabbinically and not by Torah law. Okay? So that is, overall, the initial map. So yes, one thing emerges here that we should notice: specifically Rabbi Shimon, who exempts in a case of “not intending,” from his perspective this is not purposeful labor. Perhaps there is also an exemption of purposeful labor, but “not intending” is not derived from purposeful labor. Specifically according to Rabbi Yehuda, who has no exemption of “not intending,” he apparently sees “not intending” as something that is not purposeful labor, according to these medieval authorities (Rishonim). There are medieval authorities (Rishonim). And there are others who disagree with this whole point, and they indeed claim that the exemption of “not intending” has nothing to do with purposeful labor—and the proof is that according to Rabbi Shimon it exists throughout the Torah as well. Therefore, according to their view, what is really called for—I’m not bringing the sources inside because there are so many medieval authorities (Rishonim) of many kinds; right now I’m sketching the principal directions, and afterward in the summary you’ll also have sources for specific medieval authorities (Rishonim). Therefore, apparently on the simple approach, the result is not like the medieval authorities (Rishonim) I mentioned earlier. Rather, Rabbi Yehuda in the laws of the Sabbath too would make one liable—liable to a sin-offering or stoning in a case of “not intending”—because he has no… this does not belong to the discussion of purposeful labor. “Not intending” is a different topic, and Rabbi Yehuda does not accept the exemption of “not intending.” The innovation of those medieval authorities (Rishonim) is: true, he does not accept the exemption of “not intending,” but there is another exemption, that of purposeful labor. That is not certain. It may be that when Rabbi Yehuda says “forbidden,” he means forbidden by Torah law, absolutely forbidden, because he has no additional exemption of purposeful labor for “not intending.” And where was purposeful labor ever mentioned? “Not intending” has nothing to do with purposeful labor; we see that factually because it applies throughout the Torah. Okay, so there is certainly also a possibility of seeing it that way. Look, for example—yes, for example, destructive wounding does not require purposeful labor, because destructive action is not purposeful labor. We’ll speak more about that whole issue: if you make a wound, then from the fact that a verse is needed to permit circumcision on the Sabbath, we see that otherwise it would be forbidden. Why would it be forbidden? After all, making a wound is destructive. We see that for making a wound you are liable even though it is destructive. The rule of destructive action was not stated regarding making a wound, and that means there are in fact no exemptions of purposeful labor when you make a wound. So because physically it is a wound, they discuss this. I don’t want to go into that now. It is just important to know because it is a practical ramification. Anything that is exempt because of purposeful labor—I already mentioned this—anything that is exempt under the laws of purposeful labor, I will immediately say: fine, then with making a wound that won’t apply. For example, if “not intending” is an exemption from the exemptions of purposeful labor, then if I made a wound unintentionally, I would not be exempt, because with making a wound there are no exemptions of purposeful labor. That is what they derive from the verse about circumcision.
[Speaker B] In general, there are no exemptions?
[Rabbi Michael Abraham] Yes, because otherwise there would be no exemptions of purposeful labor in wounding. How do I know that? Because if there were such an exemption, then in circumcision there would be no need for a verse to permit it; after all, it is destructive, so it would be permitted even without the verse.
[Speaker B] Say just that this reason—that it’s destructive—you’d say it’s not…
[Rabbi Michael Abraham] But what do you mean, what is the reason that it is destructive? Why, why is it destructive? After all, there is no independent source for the rule of destructive action. From where do you know that destructive action is exempt on the Sabbath? From the rule of purposeful labor. Yes, it is a subsection of purposeful labor. Fine. I don’t think so; in any case, I’m not familiar with such a direction. Look in Shitah Mekubetzet on Ketubot 5, where he cites Rashba. The Rashba is on 133, the passage there on 133. He says as follows: however, it is not connected—yes, he says that according to Rabbi Yehuda, “not intending” is a Torah prohibition, not a rabbinic prohibition. “However, it is not connected,” when they say that it is a rabbinic prohibition—he says, no, it is not a rabbinic prohibition; it is a Torah prohibition, for it is explicitly proven in Tractate Shabbat, chapter Rabbi Eliezer, that according to Rabbi Yehuda, “not intending” is at the Torah level. And even in the place of a commandment it is forbidden, for we say there: ‘Flesh, even though there is a bright spot there’—and we ask, why do I need a verse? It is something done without intention; something done without intention is permitted. And Abaye answers: it is according to Rabbi Yehuda, who says that something done without intention is forbidden. And if Rabbi Yehuda meant forbidden because of a rabbinic restriction, would a verse be needed to permit a rabbinic restriction?” Therefore it is obviously Torah law. “And even though Rava established it there even…” okay, that part doesn’t matter now. Fine? What proof is he bringing here? He says we see that “not intending,” which Rabbi Yehuda says is forbidden, is forbidden by Torah law. How do I know that? Because there is a verse. What is the connection? What is the connection? What? Yes, but that is only in prohibitions that are not Sabbath prohibitions. Everything those medieval authorities (Rishonim) say when they say that according to Rabbi Yehuda this is only a rabbinic rule—they say that only in the laws of the Sabbath. They do not say that throughout the Torah, “not intending” is rabbinic according to Rabbi Yehuda. Only in the laws of the Sabbath is it rabbinic. Why? Because they think there is an exemption of purposeful labor specific to the Sabbath, and Rabbi Yehuda also agrees with that. But they do not claim that according to Rabbi Yehuda throughout the Torah, “not intending” is only rabbinically forbidden—no, certainly it is Torah law. So why are you bringing me proofs from there? The Rashba understands that when they say that “not intending” is rabbinically forbidden, they apparently understand that “not intending” is an exemption derived from purposeful labor. And here you see that it exists throughout the Torah. It is not an exemption from purposeful labor. He is not willing to accept that there are two exemptions: an exemption of “not intending,” and on the Sabbath also an exemption of purposeful labor. He understands them as thinking that the exemption of “not intending” comes from the laws of purposeful labor, and even that cannot be, and therefore it is only rabbinic. But that cannot be—there is a verse and it applies throughout the Torah, so it cannot be from the laws of purposeful labor. He does not accept this distinction between the laws of the Sabbath and the rest of the Torah, and therefore he says clearly that according to Rabbi Yehuda, even on the Sabbath this is Torah law. That is the view—the other view among the medieval authorities (Rishonim). Those medieval authorities (Rishonim), of course, would not say what the Rashba attributes to them; he is mistaken, meaning that is not what they really say. From what I have seen at least, they do not claim that according to Rabbi Yehuda, when one is liable for “not intending,” the meaning is only rabbinically forbidden—not really liable. That is not the claim. The claim is that throughout the Torah it really is a Torah prohibition, but on the Sabbath there is, beyond “not intending”—for according to Rabbi Yehuda there is no such exemption—an exemption of purposeful labor, which leads you to a rabbinic prohibition. Okay? Therefore I don’t think—I am not familiar with any opinion other than this initial assumption in the Rashba, yes, which he rejects—I do not know of any opinion that according to Rabbi Yehuda everything is rabbinic. You also cannot say that everything is rabbinic because of purposeful labor, because in the rest of the Torah there is no purposeful labor, not even rabbinically. What does that have to do with anything? Therefore it is not—I don’t think there is such an opinion. The Rashba is fighting a straw man here. Okay, the opinions here are two. According to Rabbi Yehuda it is certainly Torah liability throughout the Torah; the question is what happens on the Sabbath. The Rashba claims that on the Sabbath too it is Torah law, because there is no difference; it has nothing to do with purposeful labor, as I said before. And the other medieval authorities (Rishonim) say: true, it has nothing to do with purposeful labor. There is a separate exemption of purposeful labor—not “not intending,” a different exemption, the exemption of purposeful labor. “Not intending” is not an exemption of purposeful labor; it is a general exemption that if there is no intention, there is no transgression. Fine? And he agrees that for Rabbi Shimon it is not like that.
[Speaker B] So he separates it completely.
[Rabbi Michael Abraham] Yes. He says: factually, this exemption also exists throughout the Torah. That is the simple approach. Anyone who says otherwise is innovating. The simple approach is that according to Rabbi Shimon, the exemption of “not intending” is not an exemption of purposeful labor; it is a general exemption. The proof is that it exists throughout the Torah. So why innovate that on the Sabbath this is about purposeful labor? It is simply the ordinary exemption of the whole Torah, which also applies specifically on the Sabbath. You can say that in parallel—were it not redundant—there is here an additional reason. Meaning, even if I did not accept the exemption of “not intending,” there is here an exemption of purposeful labor, which Rabbi Shimon agrees with; it’s just that this is like a lamp at noon—what does it help? In other words, you don’t need it, because there is already the general exemption. So it is redundant. As a matter of practical Jewish law, all the decisors rule like Rabbi Shimon. Fine? Regarding labor not needed for its own sake, Maimonides rules like Rabbi Yehuda; almost all the decisors rule like Rabbi Shimon there too, but Maimonides rules like Rabbi Yehuda. In the case of “not intending,” Maimonides also rules like Rabbi Shimon; everyone rules like Rabbi Shimon. There is one exception that I at least know of. That’s that inevitable-result case from the fingers, where Rava said that both of them said Rabbi Shimon concedes—fine. They can both say that Rabbi Shimon concedes, and that still doesn’t mean the Jewish law follows him. An inevitable result. So that is Shmuel, but there is a contradiction in Shmuel. In Rav and Shmuel there is a contradiction, a complicated story—we’ll get to it. It is more connected to labor not needed for its own sake than to “not intending.” The fact that Maimonides brings it in the context of “not intending” is a big question—why—and this is the famous Rabbi Chaim; we’ll get to it shortly. That is not what is being discussed there. There they are discussing trapping a snail and a snake—sorry, not a snail. Dragging a bench.
[Speaker B] There is the passage where he says those three things.
[Rabbi Michael Abraham] No, dragging a bench is not one of those three, in my opinion. It is not “exempt and permitted.” Anyway, Tosafot on Shabbat 110 says: “And what is explained in the She’iltot, that that which it forbids drinking a sterilizing potion—yes, a sterilizing drug—is in accordance with Rabbi Yehuda, who says that something done without intention is forbidden. And even though we hold like Rabbi Shimon, who permits.”
[Speaker B] “Exempt and permitted” is only according to Rabbi Shimon in that category itself. What?
[Rabbi Michael Abraham] But those are not the three things about which it says “exempt and permitted.” Extinguishing a wick. The Talmud on page 3 there—page 3 or 4 in Shabbat? Anyway, I need to look again; I don’t remember anymore. “That is specifically on the Sabbath, because we require purposeful labor, but throughout the rest of the Torah we hold like Rabbi Yehuda.” And then he says: “And Ri does not agree, for throughout the Torah we hold like Rabbi Shimon, who permits.” But what is the position of the She’iltot? A very strange position. Basically, we rule according to Rabbi Shimon, but we rule according to Rabbi Shimon only on the Sabbath. Why? Because on the Sabbath there is the rule that the Torah prohibited only purposeful labor. But in the rest of the Torah we rule like Rabbi Yehuda, because there the rule of purposeful labor does not exist. Fine—but how does he understand the actual dispute between Rabbi Shimon and Rabbi Yehuda? Rabbi Shimon himself permits even in the rest of the Torah, right? And even according to Rabbi Shimon, the exemption is clearly not because of purposeful labor. Rabbi Shimon himself does not think the exemption is because of purposeful labor. So what do you mean, you rule like him on the Sabbath? You rule like Rabbi Shimon but not for his reason? Because after all Rabbi Shimon permits it throughout the Torah, not only on the Sabbath. So this is not an exemption of purposeful labor. So why do you rule like him on the Sabbath? Apparently not for his own reason. Then what—do you rule like Rabbi Yehuda? Because Rabbi Yehuda also permits on the Sabbath? But Rabbi Yehuda does not permit on the Sabbath. Rabbi Yehuda said this is rabbinically forbidden on the Sabbath. So Rabbi Yehuda in fact says there is no exemption of purposeful labor—no exemption of “not intending,” sorry. It may be that Rabbi Yehuda agrees that there is an exemption of purposeful labor on the Sabbath. We saw that as a dispute among the medieval authorities (Rishonim): Rashba and two others. Fine? It may be. And then on the Sabbath this is exempt but forbidden—”not intending” on the Sabbath. That is the dispute between Rabbi Shimon and Rabbi Yehuda. Meaning, according to Rabbi Shimon it is completely permitted both on the Sabbath and on weekdays; according to Rabbi Yehuda it is forbidden by Torah law on weekdays and exempt on the Sabbath—exempt but forbidden on the Sabbath—according to those medieval authorities (Rishonim). Or altogether forbidden by Torah law. Okay? Now along comes the She’iltot and rules—what does he rule? On the Sabbath it is permitted. After all, he rules like Rabbi Shimon. “Even though we hold like Rabbi Shimon, who permits”—not exempts, but permits. Why? Specifically on the Sabbath, because we require purposeful labor. I don’t understand. According to no one. That is neither Rabbi Yehuda nor Rabbi Shimon. That is not what this She’iltot says. Correct. “This is according to Rabbi Yehuda, who says that something done without intention is forbidden.” He says: how can that be? After all, we hold like Rabbi Shimon, who permits. He answers: no, we hold like Rabbi Shimon on the Sabbath. But here we are speaking about a sterilizing potion, yes, castration. And castration is a prohibition unrelated to the Sabbath. So there is some very, very problematic claim here. And that is what Tosafot says: “And Ri does not agree, for throughout the Torah we hold like Rabbi Shimon, who permits.” Behind this, I think, sits an even stronger difficulty. Not merely that throughout the Torah we hold like Rabbi Shimon, but that you are ruling according to no one. It’s not that I’m hesitating for a moment—why do you rule like Rabbi Shimon only here? We hold like Rabbi Shimon there too. And even here you are not really ruling like Rabbi Shimon. Why?
[Speaker B] You ruled like Rabbi Shimon.
[Rabbi Michael Abraham] Right. Meaning, you didn’t really rule like Rabbi Shimon at all.
[Speaker B] You ruled like Rabbi Shimon here and like Rabbi Yehuda…
[Rabbi Michael Abraham] You rule that on the Sabbath it is permitted, and on an ordinary day it is forbidden by Torah law. Right? That is neither Rabbi Yehuda nor Rabbi Shimon. It is neither of them. No, no, no—
[Speaker B] it doesn’t mean that combination.
[Rabbi Michael Abraham] Right. It is not a combination at all. Again, understand: it is not a combination at all. It is a consistent view. Again, if there were two disputes between Rabbi Yehuda and Rabbi Shimon—one dispute throughout the Torah and a second dispute on the Sabbath, two disputes—you could rule in this dispute like Rabbi Shimon and in that dispute like Rabbi Yehuda. But this is the same dispute, not two disputes. So you are ruling according to no one. And who is the author of this line of reasoning? The She’iltot. He disagrees with Rabbi Yehuda and Rabbi Shimon. He’s also a tanna.
[Speaker B] Unless he says that Rabbi Yehuda says it as the view of a tanna—that’s the question.
[Rabbi Michael Abraham] But if our teacher—no, obviously. No, why does he say it? No. Why does he say it?
[Speaker B] No, I’m proposing it.
[Rabbi Michael Abraham] Why? No, he says that according to Rabbi Yehuda it is forbidden. According to Rabbi Yehuda, on the Sabbath too it is forbidden—exempt but forbidden. But he wants to rule that on the Sabbath it is permitted, not merely exempt but forbidden. Fine, but—
[Speaker B] the reason is because of Rabbi Yehuda.
[Rabbi Michael Abraham] You rule like Rabbi Shimon. I don’t understand that sentence. Look, just as an aside—this is a note I once wrote about, a note I once wrote about, an interesting note about halakhic ruling. There are other places where we find that we rule Jewish law in a dispute: in one place we rule like one tanna, in another place we rule like another tanna, even though neither of them distinguished between the cases. Meaning, the outcome is not really like anyone. Just for example: whether there is or is not retroactive clarification. Okay? Regarding retroactive clarification, in rabbinic law we rule that there is retroactive clarification, in Torah-level law we rule that there is not. So the Ran says that this is because of the laws of doubt, that in rabbinic matters—but there are other medieval authorities (Rishonim) where it’s clear that this is not about the laws of doubt; it’s a definite ruling. And in rabbinic matters we rule that there is. Now, there is no such tanna. We choose to rule like this one here in this way and like that one there in that way, and not because of the laws of doubt. If it were because of the laws of doubt, that would be fine—then we haven’t really ruled; we remained in doubt, and that’s the practical instruction. But someone who says that this is an actual ruling—and you can see this in other things as well. This is just, I’m noting this here parenthetically, it’s a general point not specifically connected to this lecture. Usually we understand that we are supposed to—we’re not allowed to dispute the tannaim. What does it mean, not allowed to dispute the tannaim? Why are we bound? Are we bound so that everything we say has to be found in tannaitic literature, or are we supposed to adhere to a tannaitic position? That’s not the same thing. Meaning, I’m allowed to rule on the Sabbath that something is permitted because Rabbi Shimon says it is permitted. True, not for his reason—but I’m not obligated to adopt his reasons at all. I just can’t go beyond what the tannaim allowed. If there is a tanna who permitted it, then it lies within the framework of discussion that I’m allowed to maneuver within. Okay? Since there is a tannaitic position that permits it, I’m not going against all the tannaim. It doesn’t follow from Rabbi Shimon’s reasoning, but if Rabbi Shimon permits it, then it’s not called disputing the tannaim, because Rabbi Shimon permits it. Meaning, I’m not bound to the tannaim’s reasoning; I’m only bound to the halakhic framework of their bottom-line conclusions. And if I haven’t deviated from that, then everything is fine. Okay? Now, you can see various implications of this. For example, there are these paradoxes. If there is an established rule of decision, then maybe yes—although that too can be debated—but if there is a rule of decision, fine. Let’s talk about a case where there is no such rule, and then I can decide. Do you know this? There’s a paradox, the paradox of legal decision-making, in law. Three judges are sitting in court, and two people come before them and argue. Reuven claims that Shimon violated the contract. Fine? Now the three judges have to decide two questions. One question is whether the contract really obligates doing the thing that Reuven did not do. That’s a question of interpreting the contract. The second is the factual question: did Reuven in fact do what he’s accused of? Meaning, they need to decide whether factually Reuven did what they claim he did. So one question is interpretive and one is factual. Now a situation can arise—you can draw a table, it doesn’t matter right now, I’d have to reconstruct it, but I can send you a link if you want. One judge exempts Reuven because he didn’t do it: the contract really does require what the plaintiff claims, but factually it was not proven that Reuven failed to do it—Reuven did do it, everything is fine. The second exempts Reuven because the contract does not obligate this at all. True, factually Reuven did what he’s accused of, but that’s not a problem because the contract doesn’t require it. Fine? And the third obligates Reuven, because both the contract requires it and—now if you do the math, you’ll see that on the question whether the contract requires it, there are two against one that Reuven is liable. On the question whether Reuven did the act, there are two against one that he did the act. So if you go line by line, the result is that Reuven is liable. But if you look at each judge’s bottom line, it turns out that Reuven is exempt. Because two judges say he is exempt, each for a different reason, and only one judge obligates him. So in effect, if we followed the reasoning, we should obligate Reuven, and if we follow the bottom lines, we exempt Reuven. And the general rule in the legal world is that we follow bottom lines and not the reasoning. By the way, I once found a practical example of this. In the Supreme Court there was a case—I was involved in it in some indirect way. We were sitting regarding the dissolution of a marriage of some woman; never mind, she was a get-refuser victim, they dragged her along for years, as religious courts tend to do, so we sat there to permit her to remarry. And afterward my son found online that this woman actually had a long legal saga that they had not brought to our attention there at all—a long legal saga in which she kidnapped a child, and she was accused of that, meaning the husband accused her of abducting the child against his wishes from the United States when they had been in Israel. She took the child to the United States, I think—or no, she took the child to Israel, I think, or something like that, a girl. And then there was a whole saga, appeals, magistrate’s court, district court, Supreme Court, a whole endless story. Now in the Supreme Court there was a ruling about this woman. In the end it had nothing to do with our ruling whether she was permitted or forbidden, but it was just interesting. We understood why the husband refused to give a get. We didn’t understand his real reasons for refusing; he was still wrong to refuse, but he did have good reasons to refuse—she kidnapped his daughter, and he was using this to get her to return the child. In any case. For our purposes, in the Supreme Court ruling three judges sat, and it was handled exactly according to this table. It was exactly such a table, and in the end they reached a two-to-one conclusion that when you examine the foundational questions underlying the ruling, and you examine them question by question, and on each one you decide by majority, the ruling comes out the opposite way. I can send you a link; I once wrote about this example. What? Yes, there it was against—I don’t remember which Hague Convention, I think, about children, something about child abduction. There was one question whether he abducted, and a second question whether it contradicted the Hague Convention—I don’t remember anymore. There was some issue there with no—sorry—whether there had been acquiescence or whether there had been consent. There are two grounds in the Hague Convention: if there was acquiescence, then you don’t have to return the child—acquiescence after the fact—or if there was consent from the outset and then afterward you suddenly change your mind, then also you don’t have to return the child; that’s not abduction. Fine? Those are the two possibilities, either acquiescence or consent. Now, one judge said there was acquiescence, one judge said there was consent, and one judge said there was neither acquiescence nor consent. It’s exactly the same structure as before, and one of those is enough to exempt—yes, to exempt him from returning the child. Good. So here, in the context of the She’iltot, if I return to our topic, then maybe this is indeed another example showing that the She’iltot does not really rule either like Rabbi Shimon or like Rabbi Yehuda; it rules as seems right to it. It thinks that on the basis of considered labor on the Sabbath, one should exempt here. And maybe it would even claim—if you want to go one step further—that Rabbi Shimon, who permits, disagrees with Rabbi Yehuda also in the laws of the Sabbath. And it claims that even in the laws of the Sabbath, the exemption of considered labor becomes a permission, not a rabbinic prohibition. Therefore in the laws of the Sabbath there are two reasons to permit: both the reason of unintentional action and the reason of considered labor. Fine, but what considered labor is there if this isn’t creative activity? No, why? Why? It could be that that too permits, depending on how far it deviates from normal considered labor. We once discussed doing something in an unusual manner—it depends how great the deviation is. Fine? So it could be that he is also introducing some kind of shadow position behind Rabbi Shimon: aside from the fact that Rabbi Shimon permits on the basis of unintentional action, he holds that on the Sabbath there is another reason to permit, namely considered labor. Ah, Rabbi Yehuda prohibits rabbinically—he permits only at the Torah level but prohibits rabbinically—whereas he permits even at the Torah level. There’s no real basis for this, meaning there’s no reason to assume such a thing. We don’t multiply disputes, as they say—you don’t create another dispute where one dispute already exists. Why assume there’s another dispute when the assumption that there’s one dispute explains all the facts? Meaning, you don’t need to assume something extra, yes, it’s Ockham’s razor. But maybe that is what he thinks. Maybe he just sticks to the bottom lines and ignores the reasons, and then he can rule in a way that matches no one, as long as there is some position that anchors each of his rulings separately, and then he hasn’t departed from the framework set by the tannaim, even though within that framework he has positioned himself in a place where no tanna is actually positioned. Okay? Meaning, I don’t know—it could go this way or that way. Good. What? I didn’t understand. It’s the same thing.
[Speaker D] I don’t understand the question. Here it’s both unintentional action and considered labor.
[Rabbi Michael Abraham] No, not necessarily. For example, Tosafot that I brought earlier says that the exemption of unintentional action is not based on considered labor; it’s unrelated. Considered labor does not exempt unintentional action. Why? Here, Tosafot tells you no—even if he didn’t intend it, it is still called considered labor. The exemption is an exemption of unintentional action, not of considered labor. And according to Rabbi Yehuda, there really is no exemption at all, and it would be forbidden by Torah law. No—unintentional action is not a problem in considered labor; there is no problem of considered labor in unintentional action. The question is what is involved in the very definition of considered labor. What is considered labor? I don’t know—for example, that his intention was realized. That is considered labor, one definition we discussed in Rashi in Bava Kamma 60, right? That indirect causation—if he winnows and the wind assists him, right? Then his intention was realized; the wind came. True, he didn’t do it—the wind did it—but in the end this is what he planned and this is what was realized. His intention was realized. So if you define considered labor that way, you can include unintentional action under considered labor. After all, he knew there would be a furrow, and it’s even favorable to him if you add that element—that his intention was realized. The fact that he did it in order to drag something, fine, so what? It may still fall under the definition that his intention was realized. It doesn’t have to be; it depends how you define the concept of considered labor. What? So it could be that it is not considered labor if it is not creative activity—unless it is carrying out, which is an inferior form of labor. Considered labor appears in several places. And that’s a whole subject. So then, where were we? We were at the practical ruling. So we discussed the ruling in the dispute between Rabbi Shimon and Rabbi Yehuda. Let’s summarize where we stand. Usually we rule like Rabbi Shimon. Okay? Then it comes out that unintentional action is completely permitted, both by Torah law and rabbinically, completely permitted everywhere, both on the Sabbath and throughout the Torah. The only exception is the She’iltot, which rules like Rabbi Yehuda throughout the Torah. On the Sabbath it says it is permitted, but throughout the Torah it will apparently be forbidden by Torah law, because it rules like Rabbi Yehuda, and our accepted ruling like Rabbi Shimon is only in the laws of the Sabbath. Okay? Regarding Rabbi Yehuda’s view on the Sabbath, we saw that there is a dispute among the medieval authorities (Rishonim), but that is not important because we do not rule like him on the Sabbath. Okay? So for practical Jewish law it makes no difference; we rule like Rabbi Shimon. What about an inevitable result? Here too, in practice all the halakhic authorities rule that although the law follows Rabbi Shimon that unintentional action is permitted, Rabbi Shimon admits in a case of an inevitable result that it will happen, and he admits this both in the laws of the Sabbath and throughout the Torah. Right? Because we saw that the case of inevitable result that we brought earlier—for example regarding circumcision and a skin blemish—is cited in a law that has nothing to do with the laws of the Sabbath. Rabbi Shimon’s concession regarding an inevitable result is a concession throughout the Torah, not specifically in the laws of the Sabbath. Okay? That’s an additional point. The third layer is where the outcome is not favorable to him. That is the Arukh; I’m just completing the survey of the practical rulings. Where the outcome is not favorable to him—so, we said that in a case of an inevitable result where the outcome is not favorable to him, the Arukh says that here Rabbi Shimon does not concede. So what is the law then? According to the Arukh, some say it is permitted—we have returned to ordinary unintentional action. Some say no, it is rabbinically forbidden. It is like labor not needed for its own purpose; according to Rabbi Shimon, that is rabbinically forbidden on the Sabbath. Meaning, an inevitable result where the outcome is not favorable to him is not like unintentional action with an inevitable result, and it is not like unintentional action without an inevitable result, which is permitted. Unintentional action with an inevitable result is a Torah prohibition. So the fact that the result is not favorable to him does not completely cancel the inevitable-result aspect; rather, it places me in a third category, like labor not needed for its own purpose, which is a rabbinic prohibition. Again, I’m saying it like this: in unintentional action, it is permitted throughout the Torah and on the Sabbath according to the accepted approach among the medieval authorities (Rishonim). Okay? With an inevitable result, it becomes a Torah prohibition both throughout the Torah and on the Sabbath, which Rabbi Shimon admits. What happens in an inevitable result where the outcome is not favorable to him? There, at first glance, I would have expected—if you think that the favorable nature of the result is what creates the inevitable-result status—then we’ve gone back to unintentional action, so it should be completely permitted, right? If you assume that whether it is favorable to him is irrelevant, then we are left with an inevitable result, which is forbidden by Torah law. But there are medieval authorities (Rishonim) who say no: according to the Arukh, an inevitable result where the outcome is not favorable to him is still not an inevitable result, but it is also not ordinary unintentional action—it is a rabbinic prohibition. And Tosafot and other medieval authorities (Rishonim) claim—why is that? Because an inevitable result where the outcome is not favorable to him is really labor not needed for its own purpose. Labor not needed for its own purpose is rabbinically forbidden on the Sabbath. Okay? That is the claim. That is, say—say—it could be that the category of unintentional action has been canceled here. We’ll get into the reasoning; we haven’t gotten into the reasoning and definitions at all yet. But it may be that this has actually left the category of unintentional action and moved into the category of labor not needed for its own purpose. Okay? There are medieval authorities (Rishonim) who claim that an inevitable result where the outcome is not favorable to him is not an inevitable result; the lack of favorability cancels the inevitable-result status, and we simply return to unintentional action, which is permitted—completely permitted. Okay? As for the Arukh itself, I think—I don’t remember at the moment, and it seems to me that we don’t have the source where the Arukh itself writes that this is permitted. It is always cited in the medieval authorities (Rishonim), at least that’s how it is usually presented. We do have the book Arukh, but I think this is always discussed from secondary sources, and therefore in the secondary sources it sometimes appears this way and sometimes that way. Very early, very early—Rabbeinu Natan of Rome, the eleventh century or maybe the tenth, I don’t know, very early. Before Maimonides. Before Maimonides. Yes. I think this is really from around the period of the Four Captives or something like that. What? Yes. From Rome. Wait, this is the dispute between Rashi and Tosafot; I’m getting to that in a moment. So that is about the third position, that an inevitable result where the outcome is not favorable to him is still liable by Torah law. The favorable nature of the result is irrelevant. If it is an inevitable result, you are liable. Again, it is very important to me that we keep this picture in mind, because afterward when we enter into the reasoning and so on, I will want to say each time: someone who understands it this way probably belongs with the authorities who hold this way. Meaning, I’ll want to connect the different lines of reasoning to the different halakhic possibilities. So it is important to first sketch the picture. Now in addition to that, we have three positions regarding whether the result is favorable to him. There are those who say it is completely permitted—the Arukh’s position, that it is completely permitted; we have returned to unintentional action. There is a position that says whether it is favorable to him is irrelevant—they disagree with the Arukh—and therefore it remains unintentional action with an inevitable result, forbidden by Torah law. And there are those who say that unintentional action with an inevitable result where the outcome is not favorable to him takes me entirely out of the category of inevitable result and unintentional action. Therefore it is neither permitted nor forbidden by Torah law; it is rabbinically forbidden—it is labor not needed for its own purpose. It suddenly became something new that was born on this playing field. So for that, of course, we need to understand what labor not needed for its own purpose is and how it differs from unintentional action. We’ll still get to all that. I’m doing this step by step, because otherwise with this topic it is very easy to lose your hands and feet. So I’m trying to do this very, very slowly and carefully. There is a dispute among the medieval authorities (Rishonim) on the question: what exactly is the Arukh’s case of an inevitable result where the outcome is not favorable to him? Among those who agree with the Arukh that an inevitable result where the outcome is not favorable to him is exempt—what does “not favorable to him” mean? How unfavorable does it have to be? Does it have to be that he actively does not want it, or is it enough that he simply doesn’t care? What is the idea behind this? A first hint toward the reasoning, which we still haven’t touched—but we are already gathering hints. The question is whether not wanting it exempts, or whether wanting it is what creates liability. Right? Meaning, does only an inevitable result that is favorable to him create liability, and anything else does not? Or no—an inevitable result creates liability, and if the result is unfavorable to him, then he is exempt. The practical difference is in a case of “I don’t care.” Right? Because “I don’t care” is not a case where it is favorable to you. If favorable outcome is required for liability, then in “I don’t care” you are not liable. But if unfavorable outcome is required for exemption, then “I don’t care” is not unfavorable. It’s just—I don’t care. Okay? Therefore this dispute between Rashi and Tosafot can shed light on the question of the relationship between inevitable result and favorability of the outcome. Meaning, is the basic rule that an inevitable result is liable, and you need lack of favorability to remove that and exempt? Or no, no—the basic rule is that an inevitable result is exempt, and if it is favorable to him then he is liable. Only if it is favorable to him. In other words, favorability creates liability; it is not that lack of favorability creates exemption. Yes. How is that connected to the paving stones? I didn’t understand. No, “not favorable to him” does not appear in the Gemara; that’s the case of the paving stones—you’re returning to that case. We’ll still talk about it. But yes, in the Gemara itself “not favorable to him” really does not appear. Because the fact is that there are medieval authorities (Rishonim) who do not accept the “not favorable to him” distinction. No, but even the principle itself. Yes, but even the principle of “not favorable to him” is not written there. Okay. You can get to a situation where it really bothers him. Maybe he doesn’t explain it there as “not favorable”; he explains it in another way. That’s how anyone who disagrees with the Arukh has to explain it, right? In any case. It is clear that the Gemara there cannot be an agreed-upon proof that “not favorable” creates exemption. Because otherwise all the medieval authorities (Rishonim) should have agreed to it. But we’ll still talk about the Gemara there. There are those who want to claim even more—I’m just completing the picture—that the whole idea of the Arukh regarding an inevitable result where the outcome is not favorable to him was said only in the laws of the Sabbath. In the rest of the Torah, if it is an inevitable result, you are liable; it makes no difference whether it is favorable or not favorable. For example, someone who holds that an inevitable result where the outcome is not favorable to him is labor not needed for its own purpose—the exemption for labor not needed for its own purpose was said only in the laws of the Sabbath. Unintentional action applies throughout the Torah, but labor not needed for its own purpose applies only in the laws of the Sabbath. Okay? So someone who identifies it with labor not needed for its own purpose says that this applies only in the laws of the Sabbath. The Arukh himself clearly did not say that. It’s clear that that does not fit the Arukh. Why? Because the Arukh discusses pouring wine onto the fire-offerings, a passage in Menachot, where the issue is extinguishing the fire on the altar. That is the prohibition there—it is not a Sabbath prohibition. It is the prohibition against extinguishing the fire on the altar. And from there he proves the case of an inevitable result where the outcome is not favorable to him. Fine? Therefore it is clear that the principle that an inevitable result where the outcome is not favorable to him is exempt was stated throughout the Torah, not only in the laws of the Sabbath. But there are medieval authorities (Rishonim)—so it’s not the Arukh, it’s them. Still, there are medieval authorities (Rishonim) who claim that this exemption exists only in the laws of the Sabbath and not in the rest of the Torah, and they may connect it to considered labor or to labor not needed for its own purpose, and therefore claim that it is an exemption only in the laws of the Sabbath. The Ritva in Shabbat 103—you can see the sources afterward in the summary I’ll send—asks against the Arukh: why do you exempt at all when the outcome is not favorable to him? All the places where we found an exemption for “not favorable to him,” all those proofs, including apparently that Gemara about the twigs and plowing, are only in labors that are in themselves less significant, and without the favorable result they have no meaning at all. This specifically characterizes certain kinds of labors where, without that, you haven’t done a labor at all. But in ordinary labors, whether the result is favorable should not exempt at all. So here there is yet another position among the medieval authorities (Rishonim): the Ritva understands that favorability of outcome can exempt, but only in a certain kind of labor—labors that are inferior in themselves. Think of gathering produce into heaps, for example. It doesn’t appear here, but just as an example, because that’s a classic example of an inferior labor. If someone gathered a few oranges into a basket from the field, he has violated a Torah prohibition, a stoning-level prohibition. People don’t know this anymore, but that is a primary category of labor: gathering produce into heaps. To gather a few fruits into a basket. Now if he didn’t intend, say, to gather them into the basket—or the outcome being in the basket is not favorable to him at all—then there is room to say: look, this labor, if it was not really done for the sake of gathering the fruit, then there is nothing left there. Then it’s just an act lacking any significance. So in inferior labors of this kind, it could be that favorability plays a role in defining the labor, and not that there is a general exemption whenever the outcome is not favorable to him. That is what the Ritva says. Specifically the act itself—yes, it’s related, but only in certain primary categories of labor, where those categories speak in those terms. In cooking too, maybe there could be certain categories where in certain situations this would be the case. Maybe. I don’t know; I haven’t thought it through. What? So I said there are two positions: either it is permitted, or it is exempt but still forbidden, like labor not needed for its own purpose. Someone who says that it is permitted is basically saying that “not favorable to him” cancels the inevitable result, and we return to unintentional action, and unintentional action is permitted according to Rabbi Shimon’s view. Fine? So all these are initial hints toward the beginning of the discussion of the underlying reasoning. Why is unintentional action permitted? What is unintentional action? What is the relationship between inevitable result and unintentional action? Why does “not favorable” matter? All of this depends on the reasoning, but each such line of reasoning will push us toward a different practical ruling. We will see whether this is on the Sabbath, or throughout the Torah; whether “not favorable” cancels the inevitable result, or whether “not favorable to him” is an independent exemption; whether we should first discuss favorability and only afterward inevitable result, or first inevitable result and afterward favorability. Fine? So all of these things will come once we start discussing the reasoning, and I think there’s no point beginning that now. I’ll stop here. We’ll start this in the next lecture.