Platonism – Lecture 19
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 mechanism of ukimta as a solution to a side problem
- The example of an egg laid on a Jewish holiday and preparation
- The Mishnah’s preference for examples over general laws
- Applying the method to the Mishnah “One who places the jug” in Bava Kamma
- The general principle: liability of one who places something in the public domain, and “it has no monetary standing”
- The side problem: the duty of caution and “he could have saved him by injuring one of his limbs”
- The precision of the wording “stumbled” rather than “broke”
- A dispute with the interpretation of “ones” and its implication for understanding the exemption
- A contradiction in Maimonides about a ship and cargo: “a wave” versus “the weight of the load”
- “This one benefits and that one does not lose,” and tooth and foot damage in the public domain
- Students’ questions: autonomy, obedience, and what happens without an ukimta
Summary
General Overview
The text presents a method for understanding ukimtot in the Talmud as a solution to a side problem in the Mishnah’s example-cases, while the Mishnah’s principled innovation remains true in its plain sense as a general principle. The speaker first demonstrates this through the case of an egg laid on a Jewish holiday, explaining that the Mishnah has a systematic preference for teaching principles through casuistic examples rather than through formulations of general law, because examples reflect real-world complexity and allow for better practical understanding. He then applies the same “algorithm” to the opening of the chapter HaMani’ach in Bava Kamma, interpreting the ukimtot—filling the public domain with barrels, darkness, and a corner—as removing a situation in which the damage could have been avoided, so that the case can express the principle of liability on the one who placed the obstacle in the public domain. From there he reads the passage in terms of “it has no monetary standing” and “a pursuer,” compares it to other passages (tooth and foot, “this one benefits and that one does not lose”), and also brings a contradiction in Maimonides about throwing cargo off a ship in order to illustrate the distinction between a case where the danger is “a wave” and a case where “the weight of the load” itself becomes something like a pursuer.
The mechanism of ukimta as a solution to a side problem
The speaker argues that an ukimta does not come to change the Mishnah’s innovation, but to remove “interferences” that prevent a particular case from expressing the general principle that the Mishnah wants to teach. He explains that the Mishnah teaches a general principle through a specific halakhic case, and when the specific application creates a difficulty unrelated to the principle itself, the Talmud places the case under conditions that neutralize that difficulty. He formulates an “algorithm” for understanding ukimtot: identify the Mishnah’s general principle, see how the case expresses it, locate the side problem that the Talmud raises, and understand that the ukimtot come to neutralize it so the principle can appear in its pure form.
The example of an egg laid on a Jewish holiday and preparation
The speaker cites the rule that an egg laid on a Jewish holiday may not be eaten, and explains that the general innovation is that food on a Jewish holiday must undergo preparation from the previous day, and without preparation it may not be eaten. He explains that the side difficulty is that on an ordinary Jewish holiday the egg really did “undergo preparation” on the weekday before it, so the case does not express the principle very well. He says that the ukimta “on a Jewish holiday following the Sabbath” removes the interference, because preparation done on the Sabbath is not valid preparation, and therefore the egg did not undergo preparation, so the rule expresses the general principle that applies to every Jewish holiday.
The Mishnah’s preference for examples over general laws
The speaker argues that the Mishnah has more confidence in examples than in general laws, because general laws are cumbersome, frozen, and rigid in the face of complex reality, where there are interfering factors and competing rules. He compares this preference to the didactics of studying physics and mathematics, where examples help one grasp an idea before formulating it in principle. He also compares it to British law (common law), which prefers precedents and analogies to prior examples over the language of general laws.
Applying the method to the Mishnah “One who places the jug” in Bava Kamma
The speaker quotes the Mishnah: “One who places the jug in the public domain, and another comes and stumbles over it and breaks it, is exempt; and if he was injured by it, the owner of the barrel is liable for his damage,” and presents the Talmud’s question: “He should have looked and walked.” He brings the three ukimtot: “where he filled the entire public domain with barrels,” “they taught this in darkness,” and “at a corner,” along with Rav Pappa’s statement that the Mishnah is precise like Samuel or Rabbi Yohanan and not like Rav, and Rav Zevid’s answer in Rava’s name that the wording “stumbled” was chosen because of the latter clause. He presents Rabbi Ulla’s view in the West: “because it is not the way of people to look carefully on the roads,” as a position that accepts the Mishnah in its plain sense without the need for ukimtot.
The general principle: liability of one who places something in the public domain, and “it has no monetary standing”
The speaker explains that the Mishnah comes to teach a general principle according to which, in the public domain, responsibility lies with the one who placed the vessel there, and the one passing through the public domain has a basic right of use, so that “the barrel has no monetary standing,” in the sense that damaging it does not generate monetary liability on the part of the passerby when the damage results from ordinary use of the road. He compares the jug to “a pursuer” blocking the way and therefore standing to be broken, and parallels this to the expression “he has no blood” in the law of a pursuer, to express that the obstructing object is viewed as having brought the result upon itself. He emphasizes that in his view this principle is true even in the case of a single barrel in daylight on a straight road, and the ukimtot do not define the principle but remove a side difficulty in its application.
The side problem: the duty of caution and “he could have saved him by injuring one of his limbs”
The speaker argues that the difficulty in the case of a single barrel is that a person has the option to go around it and be careful, and therefore there is a parallel here to “he could have saved him by injuring one of his limbs” in the law of a pursuer, which imposes a requirement on the individual to choose the less harmful course. He explains that the barrel can be “without monetary standing” from the standpoint of the object, but the person still has an obligation not to exercise the right to break it when he can pass without causing damage; and if he nevertheless breaks it when he could have avoided it, he would be liable because he failed to exercise caution. He presents the ukimtot as conditions that cancel the possibility of going around it or being aware of it (filling the road with barrels, darkness, a corner), thereby allowing the case to express the principled rule “in its purity.”
The precision of the wording “stumbled” rather than “broke”
The speaker sees the Talmud’s explanation, which ties the word “stumbled” to the latter clause, as a strained answer that hints that there is a substantive reason Rabbi chose the wording “stumbled,” even though in the ukimta of “filling the public domain” there would have been room to say “even if he broke it.” He argues that the Mishnah does not come to teach permission to break something intentionally from the outset, but rather the idea of exemption from liability when damage is caused through ordinary walking and stumbling, and therefore the wording “stumbled” is precise for the message the Mishnah wants to teach. He connects this to Rabbi Ulla’s approach, which further minimizes any duty to inspect the road and upholds the exemption even without ukimtot.
A dispute with the interpretation of “ones” and its implication for understanding the exemption
The speaker rejects an understanding that interprets the exemption in the case of filling the public domain as an exemption because “he could not have noticed,” in the sense of ones, and emphasizes that “a person who causes damage is liable even in a case of ones,” so the exemption does not stem from ones but from the principle “he brought the damage upon himself” when someone blocks the public domain. He says that understanding the mechanism of ukimta is not just a matter of smoothing out the text, but a tool that clarifies what the Mishnah’s innovation is and what the halakhic implications are of reading the passage this way.
A contradiction in Maimonides about a ship and cargo: “a wave” versus “the weight of the load”
The speaker brings Maimonides’ wording in the Laws of Injury and Damages regarding someone who threw cargo off a ship “which he thought was about to break from the weight of the load,” and is exempt because the cargo is “like a pursuer after them to kill them,” and contrasts it with Maimonides’ wording in the Laws of Robbery and Lost Property about a ship upon which “a wave came to sink it,” where “they calculate according to each one’s cargo.” He quotes the Raavad, “there is no salt here and no spice,” and the commentators’ questions about the contradiction, and brings the resolution of the Kesef Mishneh and the Maggid Mishneh, who distinguish between a case where the sea is the danger and the cargo is a matter of “saving oneself with another person’s money,” and a case where the weight of the cargo itself is the danger, so that the cargo becomes “a pursuer” and no payment is required for throwing it overboard. He uses this distinction to strengthen the analogy of a jug blocking the public domain as a causative factor that justifies exemption in a way similar to “a pursuer.”
“This one benefits and that one does not lose,” and tooth and foot damage in the public domain
The speaker cites the Mishnah about tooth damage in the public domain being exempt, and the latter clause, “and if it benefited, he pays what it benefited,” together with Rava’s question about trying to prove from there the rule of “this one benefits and that one does not lose.” He quotes the Talmud’s answer, “ordinary fruit in the public domain is treated by its owner as ownerless,” and explains that this does not mean literal ownerlessness, but rather a conception according to which one who places fruit in the public domain creates a situation where he has no claim of “loss” in the sense of tort liability toward passersby. He emphasizes that for an animal there is no requirement of caution, so the law appears without any need for ukimtot, whereas with a human being there is a personal obligation to be careful, and therefore there arises a need for ukimtot that remove the possibility of exercising caution.
Students’ questions: autonomy, obedience, and what happens without an ukimta
The speaker says that if there is no ukimta that allows us to understand the Mishnah, then one cannot “obey” a text that is not understood, and he cites the Talmud in Eruvin, that they did not rule like Rabbi Meir “because his colleagues could not get to the end of his reasoning,” in order to argue that rulings are made according to what can be understood. He says that if Rabbi himself had been asked, Rabbi would not have “been thinking about the ukimtot,” but about the general principle that “a jug in the public domain stands to be broken,” and the practical details follow from the known rules of the game. He concludes that this is an interpretive tool that allows us, even after thousands of years, “to interpret the principle in our own language” and create contemporary Jewish law, because the case in the Mishnah is only an expression of a general principle hiding behind it.
Full Transcript
[Rabbi Michael Abraham] Okay, last time we talked about—we finished talking about ukimtot, and I tried to show that when an ukimta is made for a Mishnah or for some amoraic statement, basically the ukimta comes only to remove a side problem. Meaning, the innovation of the Mishnah is written in the Mishnah exactly as it is, precisely, everything is fine. Except that this innovation was not written as a general principle, but rather as some specific halakhic expression, a certain case in Jewish law that expresses the general principle. Now, the specific application sometimes suffers from problems. Meaning, you can’t—you can’t really see the general principle in this specific application because there are certain interferences unrelated to the point. The ukimta comes to remove those interferences. Right? For example, an egg laid on a Jewish holiday may not be eaten—say according to Beit Hillel—it may not be eaten. The claim is that the Talmud establishes that on a Jewish holiday following the Sabbath. The question is why the Mishnah had to write that it’s a Jewish holiday following the Sabbath and not just an ordinary Jewish holiday. The answer was: no, this law really speaks about every Jewish holiday, and the innovation of the Mishnah is that an egg laid on a Jewish holiday may be eaten—may not be eaten, sorry—because it did not undergo preparation beforehand. The principle is that food on a Jewish holiday has to undergo preparation, and without that it cannot be eaten. And that is a general principle, and it is true for every Jewish holiday. But instead of stating the principle in its general formulation, they said it through a private case that expresses it, that serves as its application. Now they said, okay, let’s look, for example, at an egg that is laid. An egg that is laid is forbidden to eat because it didn’t undergo preparation. To that the Talmud asks: what do you mean? But an egg laid on a regular Jewish holiday did undergo preparation, because it underwent preparation the day before, and the day before was a weekday, and therefore it did undergo preparation. So this example does not express very well the general principle that the Mishnah wants to teach. We said: fine, we are talking about a Jewish holiday that follows the Sabbath. Meaning, the principle is that an egg laid on a Jewish holiday must have undergone preparation. True, on an ordinary Jewish holiday it does undergo preparation, because it underwent preparation the day before. Fine—so let’s talk about a Jewish holiday after the Sabbath. A Jewish holiday after the Sabbath means that the egg in fact did not undergo preparation, because preparation done on the Sabbath is not considered preparation. Consequently, the egg laid on the Jewish holiday did not undergo preparation, and food on a Jewish holiday that did not undergo preparation is forbidden to eat on any Jewish holiday. The reason I located the Jewish holiday on Sunday was in order to remove the side problem specific to the egg: if it’s an ordinary Jewish holiday, then it simply did undergo preparation, so we won’t be able to see through the egg the general idea that food has to undergo preparation—because it did. But if there were some egg laid on a Jewish holiday that did not undergo preparation, then it would be forbidden to eat it on any Jewish holiday. Therefore the law written in the Mishnah is a law stated about every Jewish holiday, not only about one following the Sabbath, and the reason I positioned the holiday on Sunday was to remove the problem in seeing the general principle through the specific halakhic example. And in the background, basically, I said that this reflects two things. First, when the Talmud looks at a Mishnah, it sees that behind the case that appears in the Mishnah there stands a general principle, and the case is just some expression of it. But basically the Mishnah wants to teach me a general principle, not a rule about one specific case. And second, even though the Mishnah always wants to teach a general principle, it chooses to do so through a case and not by formulating the general principle. Those are two principles that seem contradictory, but both are true in the Mishnah’s way of formulating and expressing itself. And the reason for this is that the Mishnah, throughout, has more confidence in looking at examples than in resorting to general laws. When I talk about general laws, they are always too cumbersome, too fossilized, too rigid. In reality, reality is always much more complex, and therefore they prefer to speak through examples, because examples illustrate better what I want to convey. Once you have examples, you can try to think about or formulate what the general rule—the general law—would be. Right? Even when, say, you study physics or mathematics, usually you study general principles, but I think pedagogically it’s preferable—preferable to present things through one or two examples that illustrate the idea, and only afterward move to the formulation of the general law. Somehow we are built in such a way that we grasp examples better. So that’s at the pedagogical level. But it’s beyond that. Because basically it’s not just a matter of pedagogy; there really is something about examples that is stronger than the rule. The rule—when you come to apply it, there are always going to be problems, and it—and it doesn’t always appear, and other rules interfere, and all kinds of things like that. With examples the whole business is much clearer, much truer. It’s more complex, but I understand what is standing before me, and therefore I can try to think about what is really going on there. So there is some advantage to working with examples. I said that this is like British law, common law, where they basically prefer to talk about precedents and examples and make analogies to earlier examples rather than speaking in the language of general laws. Well, actually I see that Professor Turkel isn’t here today, because he threw us the challenge last time. He said that according to the way I explained ukimtot, he doesn’t understand the ukimta at the beginning of the chapter HaMani’ach in Bava Kamma, and he asked me to analyze that example in light of the framework—in light of the picture I presented of how ukimtot should be understood. So I’ll do that, and hopefully he’ll watch the recording. The Talmud there—or rather the Mishnah there—basically, wait, I’ll share it so you can see. This is a good example, I think, because it lets me—you know, like what we just discussed, now suddenly it connects to what I just said. When you study a general principle, you don’t really understand it until you test it on specific examples. That’s the whole idea in the university of lecture versus tutorial. There’s a lecture that teaches the principles, and the tutorial shows me how to apply them to concrete cases, and without the tutorial you don’t really understand the lecture. I remember myself when I sat at university and really enjoyed the lectures and understood them and everything was excellent, and when I got to the exercises I had no idea how to solve them. Meaning, there is something in application to a specific case that is more complex; it doesn’t emerge simply from learning the general principle. There is value in working on examples, and only then do you really understand the general principle—and its limitations too, of course, and how to apply it, and so on. So here too I’m applying that to this very thing. Meaning, I’m going to try to show this idea of ukimtot. I spoke in general about the theory—now let’s do the tutorial. I’ll take a passage they threw at me; I didn’t build the theory around it, and let’s examine how I handle that passage in light of what we learned about ukimtot. So the Mishnah in Bava Kamma 27 says as follows: “One who places the jug in the public domain, and another comes and stumbles over it and breaks it, is exempt. And if he was injured by it, the owner of the barrel is liable for his damage.” Meaning, someone put a jug in the public domain, and another person walked through the public domain, stumbled on that jug, and broke it. The person who walked through the public domain is exempt for having broken the jug. And if it wasn’t the jug that broke but, on the contrary, the person fell because he stumbled over the jug and he himself was injured, then the owner of the jug—or barrel, the Talmud says it begins with “jug” and ends with “barrel,” never mind, it’s the same thing—the Mishnah says that the owner of the jug is liable to pay the person who walked there for the damage. In other words, one who places a jug in the public domain—the responsibility is on him. If someone damages his property, I am not liable. And if it damages me, he is liable. The responsibility is on him. Now the Talmud there on page b asks as follows: “And another comes and stumbles over it and breaks it—he is exempt.” Why is he exempt? “He should have looked and walked.” Why do you say that if a person stumbled over this jug and broke it, he is exempt? A person walking in the public domain should look where he is going. A human being can be careful; the jug can’t be careful. The person passing by should go around the jug. What, he can’t look? Why in the world exempt him? So to that the Talmud says—it brings three ukimtot and a fourth opinion. The school of Rav said in the name of Rav: “Where he filled the entire public domain with barrels.” Right, that’s the ukimta. Meaning, what am I doing? We are talking about a case where there wasn’t one jug, there was—there was a whole collection of jugs spread across the full width of the public domain. In short, it was impossible to pass through the public domain. The whole road was blocked by jugs. So if I was passing and went through one of the jugs and broke it, then I am exempt. But really, if there were just one jug and I could go around it, then in fact I would not be exempt—I would be liable. Right? So that is basically an ukimta. The Mishnah speaks about a jug placed in the public domain, and the Talmud comes and makes an ukimta: no, no, all around, this whole situation was full of jugs; it wasn’t just a lone jug standing there by itself. Right? So that’s one ukimta. Samuel said: “They taught this in darkness.” We’re talking about a single jug, not that the whole public domain was filled with jugs, but it was dark, and he didn’t see this jug, he couldn’t have seen this jug. Rabbi Yohanan said: “At a corner.” Meaning, when there was a turn in the public domain, so I’m walking, I turn, and right there there was a jug. I didn’t see it before I turned, and the moment I turned, it broke. This is basically similar—a similar ukimta to the ukimta of darkness, right? In both of these cases, I basically could not see the jug, and therefore I am exempt. But the common denominator of all these ukimtot is that if there is a jug in the public domain and I stumble on it and break it, I am indeed liable, because I should have been careful and paid attention to where I was going. What the Mishnah says—that I am exempt—that is either where the whole place was filled with barrels, or it was dark, or it was at a corner. Meaning, there are really three ukimtot applied to the Mishnah. Rav Pappa said: “The Mishnah is precise only like Samuel or like Rabbi Yohanan.” Meaning, from the Mishnah itself it emerges precisely like Samuel or Rabbi Yohanan, the last two ukimtot—darkness or a corner—but not like filling the whole public domain with barrels. Why not? “For if it were like Rav”—pay attention, he derives the ukimtot from the Mishnah itself, meaning the ukimtot do not contradict the Mishnah; they fit the Mishnah, right? So he says: “For if it were like Rav, why specifically ‘stumbled’? Even ‘broke’ too.” Meaning, if we are talking about a case where the whole public domain is filled with barrels, then the Mishnah should not have spoken of a case where if I stumble then I’m exempt. Even if I intentionally broke it, I would be exempt. Why are you blocking the public domain on me? I need to pass there. If I can’t pass, I break your jug. I am allowed to break your jug. Therefore, since the Mishnah says “stumbled,” apparently it does not fit Rav’s ukimta of filling the entire public domain with barrels, because then it should have said that even if he broke it, he would be exempt. If the Mishnah says “stumbled,” apparently it is talking about darkness or a corner, one of the last two ukimtot. Rav Zevid said in the name of Rava: “The same law applies even if he broke it.” Not true—the ukimta of Rav fits the Mishnah. True, in Rav’s ukimta too, even if he broke it he would be exempt. “And the reason it teaches ‘stumbled’”—so why did they say “stumbled” and not “broke”? Right? After all, “broke” is the greater novelty, so say that. “Since it wanted to teach the latter clause: ‘and if he was injured by it, the owner of the barrel is liable for his damage,’ which is specifically where he stumbled but not where he broke it. What is the reason? He damaged himself.” After all, what does the latter clause say? That if the homeowner—or rather the person—was injured by it, then the owner is liable for his damage. Now there clearly this applies only if the person stumbled over it accidentally. Because if the person came to break it and got injured, then certainly the owner of the barrel doesn’t have to pay him; he injured himself. Therefore in the latter clause they have to say “stumbled” and not “broke,” and since in the latter clause they have to say “stumbled” and not “broke,” the first clause also teaches “stumbled.” So even there too, in the first clause, it would also include “broke”—that is how Rav would answer us. Those are the first three ukimtot. Rabbi Abba said to Rav Ashi: “Thus they say in the West in the name of Rabbi Ulla: because it is not the way of people to inspect the roads carefully.” He drops the whole business entirely. No need for ukimtot, no need for ukimtot. The law in the Mishnah is correct in its plain sense. Someone who placed a jug in the public domain—the person who stumbles over that jug is exempt, even though there was room and it wasn’t a corner and it wasn’t darkness and the whole public domain wasn’t filled with barrels—still I am exempt. Why? Because I am not required to look carefully at the road. That’s your problem if you put a barrel there. I don’t need to—people don’t ordinarily look carefully, and they are not required to look carefully. You put a barrel there; that’s your problem. Okay, so that is basically the Talmud there. Now, the question of the ukimta—I don’t need to present it, right? It’s self-evident. What’s the problem? If in fact this is the case the Mishnah is talking about, then I really would be liable, and what the Mishnah said—that he is exempt—applies to those other cases of the ukimtot: either filling the public domain, or darkness, or a corner. So why didn’t the Mishnah write the picture it was actually talking about? Why? Why does it formulate it as a case for which that is not true? When you put a jug in the public domain, it’s not true that if someone passes there and breaks it, he is exempt. Or stumbles over it—he would be liable. When is he exempt? If he filled the public domain with barrels, or darkness, or a corner. So write that. Why didn’t the Mishnah write that? Right? That is the problem of ukimtot that we’ve already encountered in previous sessions. Now, I want to show you how I analyze this according to the understanding of the mechanism of ukimta that I showed you in previous sessions. First of all, maybe I’ll make one more remark. The Mishnah says—or rather the Talmud says—that Rav’s ukimta, which says the whole public domain is filled with barrels, doesn’t fit the Mishnah all that well. Because if that were what the Mishnah was talking about, then the Mishnah should have said “broke.” Even if he broke it, he is exempt, not only if he stumbled over it accidentally. If the whole public domain is filled with barrels and I want to pass, I’m allowed to break the jug from the outset, not just if I accidentally stumbled over it and then I’m exempt. In other words, it’s a greater novelty. And if they didn’t write “broke,” then apparently we aren’t talking about filling the entire public domain with barrels. So what’s the answer? The answer is that Rav apparently understood: true, it really could have said “broke,” but they said “stumbled” because the latter clause also talks about “stumbled.” In the latter clause they certainly had to speak about stumbling; therefore in the first clause too they formulated it as “stumbled,” even though the truth is that even in the case of “broke” it is correct. Now, this is a strange answer. Why? We’re somewhat used to this in the Talmud, but it’s a strange answer. The truth is that it should have written “broke,” so why are you playing word games with me? Write: if he broke it, he is exempt, and if he was injured when he stumbled, the owner of the barrel is liable. What’s so hard about saying “broke” in the first clause and “stumbled” in the latter clause? Is this a poem, that I have to preserve equal meter in the first clause and the latter clause? What’s the problem? Why not write the precise formulation? If that’s the precise formulation, then write it. So the answer is a strange answer. To me that is just a hint—even though I didn’t need it—but it’s an interesting hint, because it means that apparently, and that’s what I think, generally when you get these strained answers, you should think about them again. They’re not strained. They can’t be strained. Meaning, Rabbi was not an idiot. Meaning, when he formulated the Mishnah, he presumably thought about what he was saying. He didn’t just write random words there. And if he wrote “stumbled,” he probably chose to write “stumbled.” And again, even though the law is that it is also true in the case of “broke.” I’m not disputing the law established by the Talmud. The Talmud says that even if he broke it he is exempt. Still, I think there must be some substantive reason why Rabbi wrote there in the first clause specifically “stumbled,” even though the law is also true in the case of “broke.” And it’s not only the first clause versus the latter clause at the linguistic level, but the first clause versus the latter clause at some deeper substantive level. So that’s already a hint that I think can point us in the right direction. Now how do I think—now let’s leave that hint aside for the moment, because when I started thinking about this passage, I started thinking according to the system I showed you regarding ukimtot in the passages we saw, like leaven on Passover, an egg laid on a Jewish holiday, a bound sleeping slave—so we’ve already seen examples. So let’s try to apply that same mode of thought to this passage. In that mode of thought I am basically claiming the following. First of all, several assumptions—I’m putting them on the table, and then we’ll see what doesn’t work, or whether it does work. If the Mishnah is talking about a single barrel in the public domain, that means the law is said about a single barrel in the public domain, during the day and not at a corner, on a straight road, exactly as written in the Mishnah. That’s the law. And basically this law suffers—it comes to represent, remember?—it comes to represent a general idea, of which this law is only an illustration. The need for an ukimta always arises at the point where there is some difficulty in the illustration. The idea is a correct idea, but the case through which you wanted to illustrate the idea doesn’t illustrate it properly. Right—that was the mechanism I used to explain ukimta. Let’s see how I apply it here. So what do I need to think? What is the general idea the Mishnah is trying to say, and then understand how the private case illustrates the general idea, and then understand why in the private case there is some side problem that doesn’t allow it to illustrate the general idea, and then explain that the ukimtot come to neutralize that side problem. Right, that is basically the algorithm. That’s how you have to approach every passage with an ukimta. Okay? You have to understand what the general idea is that the Mishnah is trying to say, first. Second, how that idea is expressed in the case that appears in the Mishnah in its plain sense, without the ukimtot, in the case that appears in the Mishnah as it stands—the Mishnah is precise. After that I say: but there is some side difficulty, which usually the Talmud puts on the table—that’s the question it asks. Okay, meaning there is some side problem in seeing the manifestation of the general law in this private case, because in this private case there is some issue, some difficulty, that does not allow the general law to appear. And then to see that the ukimtot remove or neutralize the side problem. That’s it. Then we are left with the general law, with the correct rule, and we have solved the problem completely. Let’s do that now with this case. So let’s think what I would actually say about a case of a barrel in the public domain, where a person is walking there and stumbles or breaks it—or right, whatever happened—breaks the barrel. There are several considerations here. First, the public domain is given over for everyone’s use, right? In the public domain everyone is allowed to walk there.
[Speaker D] And the responsibility, the responsibility for the consequences of his actions is on him.
[Rabbi Michael Abraham] What responsibility? Because he’s the one who caused the breach? So that’s one first datum. How do I know that? Right? For example, the exemption of tooth and foot in the public domain. So the Rif, Maimonides, and the Rosh at the beginning of Bava Kamma explain why damages of tooth and foot in the public domain are exempt—because in the public domain a person can walk there. And if you put your fruit in the public domain and my animal ate it, that’s your problem—you should have watched your fruit. Because everyone can use the public domain, and I don’t need to be overly careful. So the initial assumption is that the public domain is a place open to everyone. Everyone can put there whatever they want. Now, of course, that itself has two sides. On one side, I am allowed to walk in the public domain; in principle I may also not pay attention. The public domain is my place; I’m allowed to do with it what I want. On the other side, the one who put the jug there is also allowed to use the public domain. It’s the public domain—every one of us is allowed to use it. And that creates a clash. It creates a clash because both of us are making use of the public domain, and for both of us that is permitted. And now we have to decide: okay, so on whom does the responsibility fall? In principle, if I didn’t add anything further, I would say this is a kind of “better to refrain from action.” What do I mean? Since both have a right to use it, what happened happened. If I broke your jug, I broke it. You want me to pay? Prove that I have to pay. I’m allowed to walk; you’re allowed to place the jug. Both of us did what was permitted, and bottom line, the jug broke. Why should I pay? Again, it’s always a matter of passive default. Meaning, if in the end you had to pay me, then I also wouldn’t obligate you to pay. Because both of us are allowed to do what we want. It’s not a substantive exemption from payment; it just means that in the public domain, whatever happens is the responsibility of the one to whom it happened. That’s all, because all of us can make whatever use we want. Seemingly, that’s the picture.
[Speaker E] But no, but one of them performed an act of damage. One of them really caused damage. The other didn’t cause damage—he didn’t do anything, he just used the space.
[Rabbi Michael Abraham] I’m not talking about “broke”; I’m talking about someone who stumbled. He didn’t break it. “Broke” was in the case of filling the public domain with barrels. Here it’s a case of stumbling over a single barrel. Okay, so he didn’t perform an act of damage—he walked. Like an animal that walks and causes damage by tooth and foot. He walked, so he used it in the ordinary way. Except that a person who causes damage is liable even in a case of ones. That’s another a priori principle that we have to take into account. A person who causes damage is liable even in a case of ones, even if he didn’t notice. Fine—but it could be that this isn’t called a person who causes damage, because if he has the right to walk there, then he isn’t considered a person who causes damage at all. It’s not a case of a person who caused damage under duress. He’s simply not a person who caused damage. Because he is walking there. If you throw your jug in front of my feet and I step on it, that isn’t called a person who causes damage and is liable under duress. I’m not even called a person who caused damage—I didn’t perform an act of damage. I walked in my ordinary way in the public domain. Therefore, in principle one could say that there is some room here to hesitate: what do we do in such a situation? I want to claim that the Mishnah comes to innovate—that the Mishnah comes to innovate this rule. The Mishnah basically comes to say that when we are dealing with the public domain, the right of the passerby is to do what he wants in the public domain. In principle, I am even allowed to break your barrel, your jug. Why? Because if you put it there, that’s your problem. So basically, he brought the damage upon himself. Meaning, you damaged yourself—that’s your problem. Okay. The barrel has no monetary standing, as they say, right? “It has no monetary standing” in the sense that it has no value—not “he has no blood,” like in the law of a pursuer, where his blood has no standing, but “it has no monetary standing” means that this barrel is basically a barrel worth nothing; anyone can do with it whatever he wants. That is the general idea. Meaning, the general idea that the Mishnah—this is the first step out of the four steps I’m taking—is trying to teach.
[Speaker C] So basically it’s like putting—like, is the Rabbi comparing this to someone who places vessels next to a sleeping person?
[Rabbi Michael Abraham] What? I can’t hear.
[Speaker C] Is it kind of similar to someone who places vessels next to a sleeping person?
[Rabbi Michael Abraham] Someone who places vessels next to a sleeping person is not a case of a person causing damage at all. Yes, exactly. Meaning, if I was asleep and the vessels were already beside me, then that would be called a person causing damage under coercive circumstances. But if you placed the vessels there after I fell asleep, then that is not called a person causing damage; you caused the damage, not I. So here we do not need to get to an exemption of coercive circumstances, because there is no exemption of coercive circumstances for a person who causes damage. So the general idea of the Mishnah is that this barrel, essentially, has no value attached to it. I would even compare it to the expression “he has no bloodguilt,” which is said about a pursuer, right? If someone is pursuing another person, and I kill the pursuer, then there is no bloodguilt for him. Now over there “blood” means human blood, as opposed to “damim” meaning monetary value. And I want to claim that it is really the same thing. “He has no value,” in this sense, means the barrel is like a kind of pursuer. It does not let me walk in the public domain, so it is a pursuer. And if it is a pursuer, I am even allowed to break it if it is preventing me from walking. Okay, I’ll elaborate on this a bit more in a moment, but that is the principle. Except that we have a side problem. What is the problem? The problem is that if I have a way to be careful and go around the barrel, then I am still required to do that. Why? Think, for example, about the original law of a pursuer. Say Reuven is pursuing Shimon in order to kill him. Now if I can save the pursued person, Shimon, by shooting the pursuer in the leg without killing him, just injuring his leg, then I am forbidden to kill the pursuer. That is called the law of “if you can save him by injuring one of his limbs.” Right? Meaning, if I can save the pursued person without killing the pursuer, then I have no permission to kill the pursuer. The same thing here. Right, the barrel essentially has the status of a pursuer. It is blocking my way and I am coming to walk here. But in practice, I could have passed without this if I had gone around it by a centimeter. In that situation the barrel still has the status of a pursuer; it is not that it does not have that status. It does have the status of a pursuer, but I can save myself even without breaking the barrel; I could have walked around it. Therefore in such a situation it is actually not true that I am exempt for breaking the barrel—or certainly not, not even if I just stumbled into it, but certainly not for actively breaking it with my hands. But not because this barrel really has monetary value. It has no value. This barrel is standing there to be broken; that law is true of any barrel. Except that in a place where I can be careful, this is like “you can save him by injuring one of his limbs.” There is a side issue here. True, in principle you are allowed to break the barrel, even to break it with your hands, not just to stumble into it. But in a case where you can manage without that, why make use of this right to break the barrel? You have the right—it is not that you do not—but if you can manage without it, then we require you not to do it, because after all he too is making legitimate use of the public domain, the one who placed the jar there. So what do we say? We have a problem. What is the problem? The Mishnah wanted to teach us the general principle that someone who places a barrel in the public domain has essentially abandoned it; it has no value. It is not that everybody can do whatever they want with it. That is the general principle. Now we want to apply this to someone who placed a barrel in the public domain, and by means of that show the general principle. But the example does not really succeed in clarifying the general principle for me. Why? Because if we are really talking about just one ordinary barrel in the public domain, I can go around it. So in that case the general idea will not be expressed—that if someone interferes with me in the public domain, I am allowed to destroy his barrel, I am allowed to break the barrel. Here that will not be expressed, because if I can go around it, then this is like “you can save him by injuring one of his limbs.” So what does the Talmud say? This is the problem I have, and notice: the problem is not a difficulty with the general principle that the Mishnah teaches. No—the general principle is completely correct. Someone who places a barrel in the public domain has placed it there to be broken; it has no value, it is a pursuer, anyone can do with it what he wants. It is just that from me—not from him, from me—it is required that if I can be careful and pass without breaking the barrel, then I must be careful. It is like this: if I killed a pursuer, even though I could have injured his leg, then I killed a person who had no bloodguilt. He is a pursuer; he deserved to die. There is even the rule that the greater punishment supersedes the lesser, because he is liable to death. So if he broke vessels while running, he is exempt for them, because he is liable to death; he has no bloodguilt. But still, even though from his own side he has no bloodguilt, I, as the one coming to strike him, am required to do only the minimum I must. So if I can just injure his leg, then despite the fact that he has no bloodguilt, I am not supposed to kill him, only to injure his leg. Okay, same thing here. In principle this barrel has the status of a pursuer, and that is true even in the case of one barrel at noon in the middle of the public domain—not at a corner, but in a straight public thoroughfare. Even so, this barrel has the status of a pursuer; it has no value. That is what the Mishnah says. And this law is true for a single barrel in the public domain, with no need for any forced reinterpretations. No reinterpretation is needed. Why, then, are reinterpretations needed? Because I have a side problem. True, this barrel has the status of a pursuer; that is the general principle I have accepted. But in practice, it is a pursuer whom I can neutralize by a lesser measure. After all, I could have gone around the barrel and solved the problem without breaking it. So in such a case the barrel has no value, but I am required not to make use of my right to break the barrel. I cannot make use of it, because I can solve the problem without it. Therefore the Talmud says: let us set up reinterpretations. It is speaking of a case where he filled the entire public domain with barrels, or it was at night, or it was at a corner. What happens there? In all those situations I do not have the option of solving the problem without breaking the barrel. Either because I did not notice it, or because I could not, since the whole public domain was full of barrels. And then what? Then I can break the barrel, or stumble into it—if it is at night or at a corner, to stumble into it—and I will be exempt. But I will be exempt in the same way that I am exempt for a single barrel. The only difference from a single barrel is that here there is no option of saving myself by a lesser measure. Therefore here the law of the pursuer appears in its pure form. Okay, like someone said: suppose the Mishnah had said, “If you see someone pursuing another person, then you may kill him.” The Talmud would ask: what do you mean? Shoot him in the leg; you also solve the problem that way. The Talmud answers: no, no, no, it is speaking of a case where he is behind a fence, so you cannot see his leg. You can only hit his heart or head. You cannot see the leg. Would that be a reinterpretation you would accept? The answer is yes, of course. Because they are coming to teach me the general principle of the law of a pursuer—that I am allowed to kill the pursuer. Now true, in practice I am forbidden to kill the pursuer if I can injure his leg. So let us make a reinterpretation: I cannot injure his leg. But that reinterpretation does not touch the principled message in the Mishnah. The principled message in the Mishnah is the law of the pursuer itself, and that is true in every case, whether there is a fence or not. It is just that if there is no fence, then I have a solution that bypasses the problem—I could have shot him in the leg. So they say no, no, there is a fence and you cannot shoot him in the leg, and therefore it is permitted to kill him. So will you ask: was the Mishnah discussing a person pursuing from behind a fence? No. The Mishnah was discussing any pursuer, and a pursuer has no bloodguilt. In practice I would be forbidden to kill him unless he is behind a fence. Fine—that only solves a technical problem. Same thing here: this barrel has the status of a pursuer. I am allowed to stumble into it and be exempt, and I am even allowed to break it from the outset because it is obstructing my walking. Except that if I have another solution, to go around this barrel, then I can neutralize it by a lesser measure. Fine, then I am required—from me, not from the barrel. The barrel has no value, but I am required not to use my right to break the barrel. Go around it. This is a law about the person, not about the object. Okay? So the barrel as an object has no value, but the person is required not to make use of that. And about this the Talmud says: I have three reinterpretations. And the reinterpretations show me, or depict, a situation in which I do not have that side solution. I have to go through the barrel. Then indeed I am allowed to break it. So the principle that appears in the Mishnah is a principle that is true in all situations, not only in the situations of the reinterpretations. By the way, that is why, in my opinion, the Mishnah also said at the beginning “stumbled” and not “broke it deliberately from the outset.” Because the Mishnah did not want to teach me this law, that I am allowed to break it. It wanted to teach me that I am exempt because this barrel has no value. That is also what it wanted to teach in the first clause. True, if he filled the whole public domain with barrels, then I am even allowed to break them, but that is not the point. They did not come here to teach me the law of permission to break. They came to teach me the law that I bear no responsibility if I pass through and break it. But if you did not fill the whole public domain with barrels, then the law is not applicable, because I can go around. So they fill the whole public domain with barrels—but the novelty is not about a case where the whole public domain is full of barrels. The novelty is speaking about a single barrel. The whole public domain is full of barrels only so that I will not have a way around. And with a single barrel, if I stumble into it, I am exempt. Therefore they used the word “stumbled” and not “broke,” and that is precise. It is not just wordplay because in the latter clause—no. It came to teach me that I have no liability if I needed to pass there and I broke the barrel. That is fine. And by the way, that is what is actually said in the last opinion: Rabbi Abba says to Rav Ashi, “because it is not the way of people to examine the roads.” What is he saying? He says we do not need reinterpretations. People are not expected to examine the roads, and if you broke it, you broke it—not intentionally, but by stumbling—without reinterpretations. There is no principled disagreement here. The first three reinterpretations, in my opinion, do not disagree at all. There is a dispute among the medieval authorities (Rishonim), but I think simply speaking they do not disagree at all. They are just three ways of removing the problem of “you can save him by injuring one of his limbs.” The fourth opinion says: no reinterpretation is needed at all. And why? Because he is basically saying: if this barrel has no value, then you put it there—your problem. Even if I can pass around it, I do not want to pass around it. Why should I pass around it? Do not put the barrel there in the middle. But the basic idea is the same. Meaning, both the first three Amoraim and the fourth Amora understand the Mishnah in exactly the same way. The Mishnah is basically coming to say that a single barrel in the public domain has no value. The fourth opinion says: that is all, and that settles it—no reinterpretation, no nothing. It has no value; walk through it, break it. That is fine. The first three say: no, this is a case of “you can save him by injuring one of his limbs.” If you can go around, why break it? In principle you can break it—they agree to that too. It is written in the Mishnah. But if you have a way around, why break it? So they make reinterpretations so there will be no alternative routes. But the idea of what is written in the Mishnah, the general idea the Mishnah comes to teach, is the same for all four Amoraim. And all of them understood that this idea is a general one; it is not an idea that rests on the reinterpretation. Okay.
[Speaker C] Rabbi, I didn’t understand. So according to the first three explanations, I actually would be liable for the monetary value of the barrel? I can’t hear. According to the first three explanations, I actually would be liable for the monetary value of the barrel.
[Rabbi Michael Abraham] Correct, in the case of a single barrel.
[Speaker C] Why would I be liable if it’s… But if it has no value, then you can tell me it’s forbidden to do this—
[Rabbi Michael Abraham] This—but don’t do it. No, a pursuer also has no bloodguilt, but if I can save the pursued person by injuring one of his limbs, I still have to be careful and not kill him. That is true in all cases. It is a law about the person, not about the object. The object has no value, but the law about the person says that even if there is an object with no value, if you do not have to break it, then do not break it.
[Speaker G] But if I broke it anyway?
[Rabbi Michael Abraham] Doesn’t matter. Then it is your problem, because you should not have broken it. It is like if I nevertheless murdered the pursuer even though I could have saved the pursued person by shooting him in the leg. Then I murdered him because I had another solution.
[Speaker G] That doesn’t make sense. Why? Because if I impose an obligation on the person, then I take it seriously. I come and say that if there is a single barrel and you can go around it, I am not willing to accept behavior where in that case you break the barrel. So what then? There has to be a monetary consequence.
[Rabbi Michael Abraham] There is a monetary consequence.
[Speaker G] If you break it, you are liable.
[Rabbi Michael Abraham] What? If you break it, you are liable. Why? Because you were negligent. Not because the barrel has value. It is like the pursuer.
[Speaker G] Okay, fine, that is right—you could have taken the reasonable course and you did not. Fine, so he would indeed be liable, right?
[Speaker D] If he broke it.
[Speaker G] Yes. If so, then it is very fitting to use the term “stumbled.” It fits very well here. Because you yourself qualify it and say that if I break it intentionally and I have another way, I am liable—but if I stumbled, I am always exempt. So why… then “stumbled” is fine.
[Rabbi Michael Abraham] That is what I am saying. That is exactly what I explained.
[Speaker G] No, you are saying that the Talmud comes to tell us that a person who breaks a barrel when it is in the public domain can break it, period, because it has no value.
[Rabbi Michael Abraham] No, again. No, on the contrary—at the end I explained that this is also how I understand why the Mishnah used the language of “stumbled” and not the language of “broke.” Because the Mishnah is not coming to tell me the law of what happens when the public domain is full of barrels. If it were dealing with a public domain full of barrels, then it really should have written “broke,” because there I am allowed even to break them from the outset. The Mishnah comes only to tell me, even with a single barrel, the law that is true even for a single barrel. What is true even for a single barrel? That on the principled level, the responsibility lies on the owner of the barrel and not on me. That does not mean I can break it from the outset in the case of a single barrel, but if I stumbled into it and I needed to pass there, I am exempt. And that is what the Mishnah wanted to teach. That someone who places a jar in the public domain and blocks it—that is his problem, not mine, the one passing there. Now true, passersby are still required to be careful, and therefore if they were not careful, we will impose liability on them to pay. But we will impose liability on them because they were not careful, not because the owner of the barrel was in the right. The barrel has no value. Rabbi, that is what I explained. The Mishnah, which said “it was broken” in the first clause, said it deliberately. It is precise.
[Speaker A] The rabbi is creating here a new kind of construction, of a barrel that has value, as though there is some quality in the object—again, Platonic metaphysics. And afterward, if so, why… let us just say it in modern legal language. How would we formulate it here, when you cannot invent these imaginary constructions about an object? No—in modern law, I think, I’m not a lawyer, but I assume the approach would be that there is contributory fault on both sides here. The Mishnah teaches us a principle: that the public domain is open to everyone, and if a person places something there, he already bears a certain responsibility for his object if something happens to it. If another person also contributed to the fault because he too was negligent and could have been careful, then both of them share in responsibility, and the judge would probably require both of them to share in the damage. That is how I guess the law would be.
[Rabbi Michael Abraham] I don’t know, but it may be that that is a possible option. So what? In Jewish law that option is not correct; there is another option there.
[Speaker A] But because they invent some construction of holiness that takes effect on the object the moment you put a shard there, then it has no value, we have found some—
[Rabbi Michael Abraham] Some linguistic concept like that.
[Speaker A] What does “the barrel has no value” have to do with anything? Wait, everything here is about the person—what does it have to do with the barrel having no value?
[Rabbi Michael Abraham] Excuse me—you have touched the heart of the topic. I am trying to show the Platonic character of Jewish law, which really is different from the usual legal way of thinking. Although here, by the way, I do not know—I am not familiar enough—but I do not rule out at all that there may be legal systems that would also see it this way, that basically—
[Speaker G] The division of responsibility between the owner of the barrel and the pedestrian can be split. A court can divide the damages between them, but it will mainly examine the moral responsibility. That is, to what extent does the responsibility of the person who put the barrel in the public domain go, as against a person who sees a barrel, can walk to the left, and instead walks over and breaks it. It is completely obvious that his responsibility is much, much greater, and maybe even exclusive, because he is doing something intentionally and completely ignoring the possibility of avoiding it.
[Rabbi Michael Abraham] So that comes very close, very close, to Jewish law. Yes, okay, fine. I am saying on the principled level—I do not care at the moment what the law says—I am saying that on the principled level there is some legal conception here, and I think it could also exist in other legal systems in that sense, not only in Jewish law. But in Jewish law indeed, the way you presented it earlier, it seems to me much more natural because of its Platonic character. That is why we make this whole move. The claim is that there is some theoretical construction here, and that is what the Mishnah is actually coming to teach. The practical applications are only the ways of expressing it; that is the casuistic way of presenting the general principle. And in the practical applications there are often problems, and with those problems we solve them by way of reinterpretation—we neutralize them. But the general idea is written in the Mishnah at face value; there is no need for reinterpretations or anything else. What is written in the Mishnah is exactly what it wants to say. That is exactly the point. Look, there is in—what?
[Speaker C] Is the rabbi basically saying that this is a matter of penalty and not ordinary monetary liability? Or is it—
[Rabbi Michael Abraham] I do not think I would call it a penalty, but it is fault—it is your fault, even though the barrel has no value, it is still your fault. Maybe in a moment I will bring another example to make this clearer. I see that I do not have much more time beyond this, so I will bring one more example in a moment to sharpen it. Look, there are, for example, later authorities (Acharonim) who want to argue: what is the exemption in a situation where he filled the place with barrels? Yes, in a case where he filled it with barrels, then he does not need to pay attention, or he cannot pay attention, and therefore he is exempt. I think they understood the topic incorrectly. Here is the implication. I want to claim that the exemption is not because of that. The exemption is simply that he does not need to pay attention. Meaning, if you blocked the public domain for me, I can break it from the outset, because I have the right to walk there. It is not because I am not at fault. The exemption is not an exemption of coercive circumstances. A person who causes damage has no exemption of coercive circumstances; a person who causes damage is not exempt under coercive circumstances. This is not an exemption of coercive circumstances. Rather, if you placed it in the public domain, he himself damaged himself. Meaning, I am passing there—why are you blocking my way? This is an incorrect understanding. And notice again, it is because I understand well how the reinterpretation works that this projects onto the question of how I read the topic. As we saw in previous topics, you can infer from the analysis of the reinterpretation what the correct understanding of the Mishnah and the Talmudic passage really is, and rule out incorrect understandings. Meaning, it is very important to make this analysis of the reinterpretations not only in order to reconcile the Talmud. Rather, it often sheds light on what the Mishnah is really coming to innovate, what the general idea is behind the Mishnah’s novelty, and that often has halakhic implications. Therefore here too you can see the implication of this issue. Look, there is a contradiction in Maimonides. Maimonides writes in—I will show you—Maimonides writes at the end of the laws of one who injures and one who damages a very interesting law, literally the last halakhah in those laws: “A ship that was about to break from the weight of its cargo, and one of them stood up and lightened its load and threw some of it into the sea, he is exempt.” Yes, there was a heavy cargo on the ship, and this weight burdened the ship, and it was necessary to throw some of the cargo into the sea because otherwise we would all drown here. So someone threw part of the cargo into the sea, and he is exempt. He does not have to pay the owner of the cargo, “for that cargo is like a pursuer after them to kill them, and he performed a great commandment by throwing it overboard and saving them.” Okay, that is what Maimonides writes. On that, the Raavad comments there: “Abraham says: there is here neither salt nor spice, for there is no law of a pursuer here at all, and this is not comparable to the case of the donkey in the chapter ‘Ha-gozel.’ And in this case, where he threw it into the sea, even though he threw one-third, they calculate against all according to their cargo, as stated in the Talmud.” In the Talmud it does not say this, says the Raavad. In the Talmud it says they divide it—say you threw my cargo, then share with me the cost of my cargo, because you threw my cargo in order to save everyone. Why are you throwing only my cargo? Okay? So he says it does not fit. And so too the Kesef Mishneh and the Maggid Mishneh, all of them ask this. Except that Maimonides himself brings the Talmud’s law that everything is apportioned according to the weight of the cargo in the laws of robbery and lost property. In the laws of robbery and lost property this law is brought, and what that law says is what happens… let me find it, one moment, if I remember correctly it is chapter 12.
[Speaker C] There the difference is whether the sea is the pursuer or whether the cargo itself is the pursuer, as it were.
[Rabbi Michael Abraham] Yes. I’m getting to that now. Here, halakhah 11: “A ship that was traveling at sea and a wave rose against it to sink it, and they lightened its cargo, they calculate according to the weight of each person’s load and not according to monetary value. And they should not deviate from the sailors’ custom.” The custom does not matter; the custom is not important. But they calculate according to… they divide the costs. So this is already a contradiction in Maimonides; it is not a question from the Talmud against Maimonides. It is a contradiction within Maimonides himself. So both the Kesef Mishneh and the Maggid Mishneh say—and this is a very interesting topic with many other implications—that this story here in chapter 12, halakhah 11, in the laws of robbery is parallel to Jonah the prophet. Jonah the prophet, a wave rose there to sink the ship; there was a storm at sea, and they threw Jonah the prophet overboard, and then the sea ceased its raging. That is how they were saved, right? So there too you have the same division. You can see, for example, in Sefer Chasidim, and the claim is as follows. The Kesef Mishneh and the Maggid Mishneh say this. In the case shown here on your screen, what threatened to drown us was the sea. There is a storm. The cargo perhaps does not let us escape; it causes indirectly, or does not allow us to be saved, but what will drown us is not the cargo. It is the storm. In that situation the cargo does not have the status of a pursuer; it is not pursuing us. In such a case this is called “saving oneself with another person’s property.” The storm is about to drown me, and I damage my fellow’s property in order to save myself. In that case it is obvious that if I use my fellow’s property, I have to share with him—why should he bear all the costs? But in our case, in the laws of one who injures and one who damages, what Maimonides says—the part we read earlier—is not about a wave. It is “a ship that was about to break from the weight of its cargo.” The cargo itself is about to break the ship. What does that mean? That the cargo has the status of a pursuer. The cargo is about to kill all of us. So if it has the status of a pursuer, I am allowed to kill it, and therefore there, if I threw the cargo into the sea, there is no need to share, nothing. This is the law of a pursuer. That cargo—again—has no value. Just as a pursuer has no bloodguilt, meaning there is no penalty for killing him, so too that cargo entails no payment for breaking it or destroying it. But it is the same idea. And I claim that a jar in the public domain is basically some kind of pursuer, analogous to a pursuer.
[Speaker E] Wait, wait—why do you have to say that? Why can’t you say it is a difference between from the outset and after the fact? If they ask what should be done, then you say: come on, everyone should contribute. But if I already took somebody’s property and threw it, then it really has the status of a pursuer and I can throw it.
[Rabbi Michael Abraham] You mean, to resolve the contradiction in Maimonides? Yes. No, that cannot be. Because Maimonides says in the laws of robbery and lost property that they share the monetary burden, and here he says he is exempt if he threw the cargo overboard. There is a difference in the law; it is not merely after the fact.
[Speaker E] You mean, if I already threw it, they share?
[Rabbi Michael Abraham] Yes. If you threw it, then there they share, and here, if you threw it, you are exempt. Rabbi, but is this speaking here—
[Speaker F] of a single cargo belonging to just one person?
[Rabbi Michael Abraham] No, no, not necessarily. He lightened from this cargo. Rabbi, the Maggid Mishneh writes this; I do not want to get into all the details in Maimonides. By the way, Sefer Chasidim says the same thing too. There too there is seemingly a contradiction in Sefer Chasidim, and nobody understands it—there is a contradiction here. By the way, I saw that Rabbi Ovadia actually discusses this, and he writes that the contradiction is not really a contradiction. He is speaking about Jonah. He says that if there is a ship about to sink and there is a storm at sea and the ship is about to sink, it is forbidden to throw someone into the sea in order to save yourselves. Elsewhere he says it is permitted. And when you look carefully, you see that where he says it is permitted is a case where the storm attacks only our ship. All the ships around are sailing peacefully. That is what happened with Jonah. That is what the midrash of the Sages says. That is what happened with Jonah. What does that mean? That apparently there is something in our ship because of which this whole thing is happening. Then it is permitted to draw lots, and whoever comes up is thrown into the sea. But if the storm is a general storm attacking all the ships, why would you draw lots and throw someone into the sea? There is no indication at all that throwing him into the sea will save us; he is not a pursuer. In the first case, by means of the lot we are searching for the pursuer. Fine, but that is just a side remark. I only want to finish with one more remark that may clarify this further. There is a Talmudic passage in Bava Kamma 20b, a very strange passage, ostensibly. The Talmud there discusses “this one benefits and that one does not lose.” “This one benefits and that one does not lose”—the question is whether he is exempt or liable. So it says there: “this one benefits and that one does not lose” is exempt. So the one sage says, I can infer this… One sage says to the other: “It is a Mishnah. What are you all pilpul-ing about in the Talmud? There is an explicit Mishnah there that says it.” The other asks him: “Which Mishnah is that?” He says to him: “Had you served me, you would know…” and so on. Then he cites the Mishnah. He says to him: “If it benefited, it pays according to its benefit.” It is speaking about an animal—here. A Mishnah on the previous page. It says as follows: “How is the tooth prone to eat what is fit for it?” An animal is prone to eat fruits and vegetables. If it ate clothing or vessels—under what circumstances? In the property of the damaged party. But in the public domain it is exempt. If an animal ate produce—damage by eating in the public domain is exempt. “But if it benefited, it pays according to its benefit.” Fine? If it gained a meal, you pay for the benefit it got. So on that, I think it was Rami bar Hama, he says that from that Mishnah we see that “this one benefits and that one does not lose” is liable, because it says: “If it benefited, it pays according to its benefit.” Rava says: “How sick and insensitive is this man who learns from storekeepers. Even though it is not similar to the Mishnah, he accepted it from him.” This is not like the Mishnah. “There, this one benefits and that one loses; and here, this one benefits and that one does not lose.” What does that mean? In the Mishnah the animal ate the fruits. So the person—the owner of the fruits—lost. This is not “this one benefits and that one does not lose”; it is “this one benefits and that one loses.” The owner of the animal benefited, and the owner of the fruit lost—his fruit was eaten. So how can you bring proof from there to “this one benefits and that one does not lose”? The Talmud asks: and Rami bar Hama—what did he think? Was he an idiot? He thought that produce left in the public domain is treated as ownerless. What does that mean? Someone who leaves produce in the public domain has abandoned it. Therefore if the animal ate his produce, he is not considered to have lost. This is very strange. What do you mean, he is not considered to have lost? Then why must one pay him? What am I paying him for? The produce is not his; he abandoned it. Right. You cannot pay someone for produce that is not his. You can pay someone for his property even if, say, he did not suffer a loss. But if it is not his because he abandoned it, then what does it even mean to pay him? It is obvious that there is a more complex statement here.
[Speaker A] Clearly there is no duty of liability toward him.
[Rabbi Michael Abraham] He did not abandon them. He did not abandon them; it is not speaking of actually abandoning the produce. That is not the reinterpretation. Rather, if you place produce in the public domain, it is like abandonment. In that sense—call it contributory fault, or call it that if you put it in the public domain everyone is allowed to pass there. And therefore if an animal passes there and eats them, you cannot say that you have lost, even though they are your produce and they were eaten. Why? Because you caused your own loss. True, the animal benefited—that is “this one benefits”—but you do not count as having lost, even though in fact you did lose. And again, what do we see? Exactly the idea I spoke about earlier. If I put produce in the public domain, or a jar in the public domain, it has no value. Not that it is not mine—it is mine. I did not abandon it. But it has no value. If something happens to it, that is your problem. By the way, what is beautiful here is that with an animal, unlike a person, a person has to be careful when walking on the road. Therefore the law about the person, which forced us to make the reinterpretations, exists only in our topic. Because in our topic we are speaking about a person who walked there opposite this jar and was not careful. You should have been careful—you are a human being, not an animal. So they say: either he filled the public domain with barrels, or it was at night, or at a corner. They make reinterpretations in order to solve the problem of the duty of care that is imposed on a person. But if it is an animal walking in the public domain, we do not make demands of animals. Animals do not have to be careful. Animals do what their nature tells them to do. If you put produce in the public domain, know that the animal that passes there will eat it. So there we see the law in its pure form, because there no reinterpretations are needed. In our case it is the same law itself. It is just that here, because the one walking was a human being, you have to make reinterpretations, because a person has to be careful. So you make a reinterpretation in which, in that reinterpretation, he could not have been careful. But the idea is the same idea.
[Speaker F] But the one causing the damage was not a human being.
[Rabbi Michael Abraham] The injured party has no value attached to him. That is the idea.
[Speaker F] But the point was not about a person walking. The Talmud brought an example, so it could have brought an example of a cow walking and hitting the jar. Then there would have been no need for reinterpretations.
[Rabbi Michael Abraham] No, the Mishnah brought the example.
[Speaker F] So the Mishnah did not need to—if it had said, “and a cow walked and hit the jar,” then we would not have gotten tangled up, we would not have needed reinterpretations.
[Speaker G] But then you would not—
[Speaker F] know what the law is, so—
[Speaker G] you would not know the law regarding a person who walked there. What is the point?
[Speaker F] No, if the law is the same for a cow and for a person—that he is allowed to walk and does not need to think too much—
[Rabbi Michael Abraham] He does need to, and that is the point. A person really does need to think, and that is why we made reinterpretations. No, but it is about the person and not about the object.
[Speaker F] So I am saying that if we brought an example with an animal, then we would know that it is speaking about a mistake, that he did not think about it, and that he did not intend it.
[Rabbi Michael Abraham] Then you would not know the law regarding a person—that is exactly it. It is like saying: you want to tell me that a slave is like a courtyard. So why do you demonstrate it specifically through a bill of divorce? In the case of a bill of divorce he also has to be bound and asleep. Demonstrate it through something else. Say that someone who finds leaven in his possession on Passover has violated the prohibition of seeing it and possessing it. There, for example, he would not have to be bound and asleep, for the sake of argument.
[Speaker F] Or alternatively, or alternatively, right.
[Rabbi Michael Abraham] So the Mishnah chose—the Talmud, the Mishnah, sorry—chooses examples that it apparently thinks reflect the point more sharply, or that have some added value beyond the simple case. It is true that this forces us to make reinterpretations, but from the perspective of the editor of the Mishnah, the fact that we make reinterpretations does not bother him, because it is trivial, it is obvious. It is like saying—let me go back to the example I gave earlier. I say: a person who is pursuing his fellow, you may shoot him in the head. The Talmud says: what do you mean? Shoot him in the leg—you can save the pursued person by striking a limb. No, no, no, he was behind a fence. Fine? So I say: then say that it is talking about a fence. He says: no, no, no need to say that. I tell you that you may shoot him in the head because that really is the law. You are right that the practical application requires some reinterpretation, but that is not terrible. If everyone—if everyone—the rules of the game are clear to everyone, meaning everyone understands that the case is only an expression of a general principle, then it does not matter—give the case. In the eyes of the editor of the Mishnah, this is not considered entangling the Amoraim or the readers of the Mishnah. It is not a complication. Whoever understands reinterpretations understands that this is simple; there is no problem here. It is not some consideration of, wait, we are going to get tangled up. You see—they did not get tangled up. They asked, made reinterpretations, and moved on. It never occurred to anyone to read it literally, except for the fourth opinion, which really thinks it is true literally. I am only saying: if you can bring an example that needs fewer reinterpretations, then bring that.
[Speaker A] So I am saying, since the reinterpretations—
[Rabbi Michael Abraham] It’s not problematic, so it doesn’t bother him that this is an example that needs reinterpretive qualifications, because reinterpretive qualifications are a simple thing. There’s no need to get tangled up in it. We get tangled up in it because we don’t understand what a reinterpretive qualification is. That’s one thing. And second, many times the case they chose—true, there’s a price, because I have to make reinterpretive qualifications, but there’s also a gain: I manage to understand that a person walking in the public domain is nevertheless different from an animal walking in the public domain. In both cases the barrel has no value claim, but regarding the person there is a personal obligation to be careful, at least according to some of the Amoraim. So it could be that that’s why they chose this example. That’s already a technical question, why they chose דווקא this example. But for our purposes—I see I’m out of time—so just for our purposes, what we see here is exactly this mechanism, or this algorithm, of analyzing the passage according to the idea of reinterpretive qualifications that we learned. It sheds precious light on the passage here. It fits perfectly with the reinterpretive qualifications that appear here in the passage, and through this I really understand what the Mishnah is coming to teach. Without this I wouldn’t understand what it is coming to teach. Not only would it be hard for me why the reinterpretive qualifications don’t appear in the Mishnah—I wouldn’t understand the Mishnah at all. That’s it. Rabbi, Rabbi, if we were to ask Rabbi himself, if we could somehow call him up and ask him what he really had in mind when he wrote, “one who places a barrel in the public domain”—would he tell you that he meant what you said here? Did he have in mind at night, or at a corner, or that the barrel filled the whole area? No, that’s the point. No, he doesn’t need to think about that. He didn’t think about it at all. He told you the general principle. The general principle is that a barrel in the public domain is meant to be broken. That’s all. Now exactly how that happens—fine. If you have a way to get by, then don’t break it, but if you don’t, then break it. But the tanna still formulated it in something actionable, in practical guidance: exempt. As I said, the rules of the game that were familiar and known to everyone were that even when you state a case, everyone understands that you’re not really talking about just a case. The case comes to express a general idea. That is the basic assumption here. And therefore it was clear to everyone, both to Rabbi as the author of the Mishnah and to the Amoraim as readers of the Mishnah. And once that’s how it works, then there’s no problem at all. Everyone understands that what we really have here is a general principle hidden behind the Mishnah. So then we’ll be able to use this wonderful tool everywhere—not only in the Mishnah, also in the Talmud—that in all cases we’ll say they are not speaking practically; they are stating a principle, and then after two or three thousand years we can interpret the principle in our own language and create Jewish law that is completely current and different. We do this many times. We just don’t call it that, but we do it. And that’s obvious to everyone; there’s no problem with it. Once you think about it that way, there’s no problem with it at all. It’s a simple thing. I told you at the beginning that I had an argument with my son, and in the course of the argument he made a reinterpretive qualification. When he asked me, “Wait, what are all these reinterpretive qualifications? It’s not logical,” in the middle of our argument he himself made one. This is something we do all the time. It’s a simple thing; you just have to notice that this is the idea behind it. Yes, but the example should fit the general idea as closely as possible, and not bring something far-fetched that needs seven hundred reinterpretive qualifications. No, sometimes they bring an example that maybe doesn’t fit as well, fits the general idea less well, or needs reinterpretive qualifications in order to fit, but there is something to be learned from this specific example, and therefore we nevertheless prefer this example. We give the example of a person in order to tell you that even when a person walks in the street, even then the barrel has no value claim. Not only with regard to cows, but also with regard to people. True, regarding people there is a personal obligation to be careful, but the Mishnah comes to say that the law that the barrel has no value claim is not only when cows are walking in the street; it is also true when a person is walking in the street. And that is a novelty, so it makes sense that the Mishnah wants to teach this specifically through a person walking and not a cow walking. Okay. Rabbi, what would happen if, let’s say, the Amora had not managed to think of a reinterpretive qualification? He runs into some difficulty in the Mishnah and he has no reinterpretive qualification; none occurred to him. They had three reinterpretive qualifications here, but if there were none at all, what would he do? I don’t know. Teiku! He would say teiku. There would still be room to say, theoretically, that the general idea is correct, only in this case I don’t have a reinterpretive qualification that expresses it, but they still wanted to teach me that general idea. And one could also say no: in a case where there is no reinterpretive qualification at all that helps realize it in this specific case, then it is not likely that the tanna chose a case where even with a reinterpretive qualification you can’t bring it into practical expression, and therefore you probably misunderstood the Mishnah and need to look for another solution. But then would he say the tanna made a mistake, or would he say, “I obey, because he is the tanna and I am an Amora, and what can I do”? Why obey? He doesn’t know what it means. If you can’t provide a reinterpretive qualification, then you can’t learn anything from this Mishnah because you don’t know what it is saying. There is nothing for me to obey. Here too, for example—let’s say I had not found a reinterpretive qualification. Would what I then need to do be to say that a person who walks through a barrel in the public domain is exempt? No, here we see that the tanna actually says he is liable. Not exempt. You need the reinterpretive qualification in order to explain that he is exempt. Let’s say I hadn’t thought of any reinterpretive qualifications. Still, the principle the tanna stated is specifically that he is liable, not that he is exempt. But he writes “exempt.” “One who places a barrel in the public domain and someone stumbles over it is exempt.” So if I don’t find a reinterpretive qualification, then what can I do? He wrote “exempt,” so exempt it is, however illogical it may seem to me. No, but if I understand—if I understand that this isn’t right because a person has to be careful, as the Mishnah asks at the beginning—the Gemara, sorry, asks at the beginning—I know that a person has to be careful, so I have a difficulty here that I have no answer to. But if there is no answer, then what can I do? What can I learn from this Mishnah? I can’t follow a Mishnah that I don’t understand. So this is also a huge principle regarding what we hear from someone: even if, according to the rules of hierarchy, he is greater than we are, if I don’t understand it, then I do not obey him. Correct. Not something self-evident. Just in last night’s lesson I spoke about the duty of autonomy, and I brought the Gemara in Eruvin which says that the Jewish law was not ruled in accordance with Rabbi Meir because his colleagues could not get to the depth of his reasoning. So he was such a genius that we did not understand what he was saying, and therefore we do not rule in accordance with him—not therefore that we do rule in accordance with him. Why? Because we are supposed to rule according to what we understand, even though he was a genius; we too agree that he was more of a genius than we are. Yes. Rabbi, only regarding the case we brought with the ship, where the property is a pursuer—but there there is no personal obligation to participate in saving the property, meaning if I also have cargo… The Raavad says there is, but Maimonides argues that there isn’t. I am not claiming that Maimonides is right. I am claiming that there is no difficulty against Maimonides. That is Maimonides’ position; one can disagree with Maimonides. But that is… Suppose there are ten people chasing me, okay? People, not property. Now I shoot backward and hit one of them. Can each one say to me, “Wait a second, why are you shooting at me? Shoot at them—they’re chasing you too”? If all of them are chasing me, then none of them has a value claim. I can shoot whomever I want, and there is no obligation to divide it up. Yes, but if you are also a pursuer, then I also have a burden of pursuer status. So what? If we say that you too have a burden, that means all of us are being pursued by the burdens. Okay, so what? Yes, so seemingly there is a personal obligation, so to speak, to participate in the rescue. There is no personal obligation. Once the cargo has the law of a pursuer, it has no value claim. Do whatever you want with that cargo. That is Maimonides. The Raavad does not agree, but that is Maimonides’ position, and it is a position one can hear. It is not something absurd. All I am claiming is that there is no difficulty against Maimonides. The question whether Maimonides is right or the Raavad is right is another debate. It is an expression of the idea that it has no value claim—in the case of the barrel. When you say that the cargo has no value claim, what you are really saying is that anyone can do with it whatever he wants, even if it isn’t fair. Why shouldn’t we divide it? I’m not interested in dividing it. All this cargo can be burned up; it has no value claim—they are all pursuers. Yes, so I don’t understand the logic in our case of one who places the barrel. Why there do I have to take fairness toward the person into account? You can’t be saved. On the ship you can’t be saved without throwing out cargo. The question is which cargo to throw out. But you have to throw out cargo. If you have to throw out cargo, then throw out whatever you want. But with a barrel in the public domain, you can go around it and not damage anything. That’s a different discussion. And why doesn’t the Rabbi say—why can’t we infer from that that if I can save myself, then really the rule that “it has no property claim” doesn’t apply here? I didn’t say I can’t infer that. I said that the Mishnah says not like that. Meaning only because of the reinterpretive qualification, that’s the… Yes. What bothers me more is: where did Jonah have air to breathe? I can’t hear. I can’t hear. Where did Jonah have air to breathe? I didn’t understand. What? Inside the whale? Yes. Excellent question. Assuming that this whole story happened, there is room to discuss it, and I don’t know—maybe in the whale’s belly there was some compressed air and he had enough air until he reached dry land. I don’t know. Make a reinterpretive qualification. Maybe. Okay. Sabbath peace. Sabbath peace. Goodbye.