Gemara, Yoma Chapter Eight – Lessons 3 and 4

Table of Contents

• The sources of the law: “all fat” and chazi le’itztarufei
• Half a measure in the act: the Meiri, Sefat Emet, and distinctions between quality and quantity
• An independent prohibition versus an extension of the original prohibition, and the relation to punishment
• Expanding half a measure beyond quantity: examples from Rabbi Asher Weiss and their implications
• Fitting the conceptual explanations to the examples: the difficulties of chazi le’itztarufei and the smell of a fence
• Maimonides: “like half a measure” and half-quality in the object
• Additional later authorities: the koy, “two people who did it,” “demolishing not for the sake of building,” and a vow that is miklash kalish
• Nachmanides on approaching forbidden sexual relations: “in the manner of half a measure” and a prohibition of benefit
• The broad extension of “all fat” and its implications
• Half a measure in positive commandments and the connection to beautifying a commandment
• Opening the topic of an oath regarding half a measure at the beginning of the chapter
• Oaths and rabbinic prohibitions: testimonial oath versus utterance oath
• Summary of the positions: Reish Lakish versus Rabbi Yohanan and the question of rabbinic law

Summary

General Overview

The lecture continues the dispute between Rabbi Yohanan and Reish Lakish regarding the law of half a measure, against the background of the two sources in the Talmudic text: the extension from “all fat” and the reasoning of chazi le’itztarufei. From these, different understandings are developed as to whether half a measure is a fence, an extension of the original prohibition, or an independent prohibition. Many examples are brought from later authorities, as cited by Rabbi Asher Weiss, that expand half a measure beyond half a quantity in the object to half an act, half a result, and even half a quality, and the lecture examines how each conceptual approach explains or struggles to explain those examples. After that, there is a discussion of Maimonides, who compares certain prohibitions to “like half a measure,” and of the dispute among later authorities over whether this means a true qualitative half measure or only an analogy of “a Torah prohibition without lashes.” From there the possibility is examined of a broad extension from “all fat,” to the point of including anything that has some dimension of the prohibition. Finally, the lecture discusses the question of half a measure in positive commandments as a question of the value of partial fulfillment when a full measure is impossible. It then opens the topic of an oath regarding half a measure based on the Mishnah and Talmudic text at the beginning of the chapter, clarifying whether an oath can take effect on a Torah-level prohibition or a rabbinic one, and what follows from that for Rabbi Yohanan and Reish Lakish.

The sources of the law: “all fat” and chazi le’itztarufei

The extension from “all fat” and the reasoning of chazi le’itztarufei are combined in the plain sense of the Talmudic text and are not presented as two separate alternatives, even though among later authorities there are attempts to build them as two different tracks. Definitions of half a measure are built along the axis of a fence, and along the axis of chazi le’itztarufei in the act versus chazi le’itztarufei in the object, based on the claim that the quality of the prohibition exists even in less than the full measure and only the quantity is lacking. Rav Shimon formulates the point that the quality of the prohibition exists even in small parts, and from this the difference becomes sharper between a quantitative half, which joins to a full measure, and a qualitative half, in which part of the definition of the act is missing.

Half a measure in the act: the Meiri, Sefat Emet, and distinctions between quality and quantity

The Meiri is presented as someone who could explain the law of carrying two cubits out of four cubits in the public domain as half a measure, because the quality of the prohibition is present here while a quantitative measure is lacking, even though he himself says that this is not a case of half a measure. Sefat Emet at the beginning of tractate Shabbat is presented as saying that lifting without placing down is half a measure in the act, and therefore this is not actually a case of half a measure. It is then said that there is no need to equate his view with the Meiri, because of the difference between two out of four cubits, which is a quantitative half of the same act, and lifting without placing down, where an essential quality of the act of carrying out is missing. The point is made that even someone who would say that two cubits is half a measure can still agree that lifting without placing down is not half a measure, because it is not “more of the same thing,” but rather lacks the completion of the quality of the act.

An independent prohibition versus an extension of the original prohibition, and the relation to punishment

Two ways of understanding are presented: whether half a measure is an independent prohibition or an extension of the original prohibition. This affects how one understands “all fat”: whether it is an extension regarding the prohibition or a limitation regarding punishment. The view of Tosafot Yeshanim is mentioned, according to which one is even lashed for half a measure, as against the majority of views, according to which there is no karet and also no lashes. This sharpens the question whether the prohibition exists by force of the original prohibition and only the punishment was said regarding a full measure, or whether the very prohibition of half a measure is itself a separate novelty. It is said that if the prohibition is learned from the original prohibition, then one who eats half a measure of forbidden fat violated the prohibition of fat itself and not some other prohibition. But if there is a novelty that the half is prohibited by force of an independent extension, then there is room to see it as an independent prohibition.

Expanding half a measure beyond quantity: examples from Rabbi Asher Weiss and their implications

Rabbi Asher Weiss cites, in the name of Machatzit HaShekel on paragraph 7, that one who pulls a fish from the sea before it dries to the extent of a sela is liable for taking life, by the law of half a measure prohibited by Torah law. From this emerges the novelty of a possible “half measure” in murder, in cases such as blocking the mouth or drowning, along with a discussion of whether this would fall under “let him be killed rather than transgress.” During the lecture, a comparison is presented to cooking and planting as acts that begin on the Sabbath and whose result takes shape later, and the question is discussed whether taking life has that kind of structure and what distinguishes it from murder, alongside the claim that the act is the prohibition and the result is a condition, with the example of confinement and starving someone to death.

Tosafot in Sotah are brought as understanding that “let him be killed rather than transgress” applies to public humiliation, and this is explained as a branch of murder through the draining of blood from the face, in a way that resembles half an act of murder or half the result of murder without capital punishment, with the possibility of seeing it as a prohibition of murder without punishment, similar to half a measure. The Binyan Tziyon of the Arukh LaNer is brought, explaining “let him be killed rather than transgress” in interpersonal sins on the basis of violating another person’s rights and not on the basis of a branch of murder.

The Hatam Sofer, Orah Hayyim section 517, rules that at the time of chewing, before swallowing, there is a Torah prohibition because of half a measure, and it is said that this is a half-act more similar to lifting without placing down than to two cubits out of four. Nishmat Adam, rule 21, says that from the beginning of cutting fingernails on the Sabbath there is a Torah prohibition by the law of half a measure even though they are still attached. Pri Megadim in Rosh Yosef on Shabbat 58 and in the responsa Beit Yitzhak say that cooking water, even before it reaches the temperature called “the hand recoils,” is prohibited by Torah law because of half a measure, and the Hazon Ish writes this as a possibility. Ezer Mikodesh explains that according to Nachmanides, who holds that approaching a forbidden sexual relation is not prohibited by Torah law, there is nevertheless a “half-Torah” prohibition by the law of half a measure, because such closeness is liable to lead to intercourse, and it is said that later in the lecture it will be shown that Nachmanides himself is not explained that way.

It is said that most of these examples involve half of an act, but they are situated between the two poles of two cubits out of four and lifting without placing down, because they are a continuous act that began and was not completed, and not an independent disconnected act. Therefore they are neither a “pure quantitative half” nor an “absolute qualitative lack” in the same way. Taking life in the case of pulling up a fish is presented as half a measure in the result. Cutting fingernails and water that has not yet reached “the hand recoils” are presented as closer to a quantitative lack, but still with a qualitative component. And approaching forbidden sexual relations, according to the interpretation of Ezer Mikodesh, is presented as half an “intercourse,” in the model of “a whole death is a half death.”

Fitting the conceptual explanations to the examples: the difficulties of chazi le’itztarufei and the smell of a fence

It is said that the Hazon Ish’s reasoning, according to which the quality of the prohibition is ordinarily present in a small part and joins up, has difficulty with examples like chewing without swallowing, because one cannot say that in the first half the full quality of eating is already present and only the quantity is lacking. Rather, there is the quality of chewing and the quality of swallowing, and they combine together. The extension from “all fat” sounds like a quantitative measure of an object, and therefore applying it to parts of an act seems strange, whereas the fence-based reasoning fits these examples and is explained as something that “smells” of the idea that the prohibition on less than the full measure is meant to prevent reaching the full measure. It is said that if “all fat” is understood only as a limitation regarding punishment, while the prohibition exists by force of the original prohibition without a new extension, then it becomes very difficult to apply “half a measure” to examples of half an act, like chewing, or to delaying conditions like swallowing, because it sounds strange to define the completion of the act as a condition for punishment but not for the prohibition itself.

Maimonides: “like half a measure” and half-quality in the object

Maimonides, in Laws of Forbidden Foods chapter 3, writes that the fat of an impure animal and the eggs of an impure bird are prohibited by Torah law, but one is not lashed for them, and one who eats them “is like one who eats half a measure, which is prohibited by Torah law and for which one is not lashed, but he is given disciplinary lashes.” Maimonides in chapter 7 writes regarding certain sinews and membranes that if one says they are prohibited by Torah law under the category of “all fat and all blood,” then “they would be like half a measure, which is prohibited by Torah law and one is not lashed for it,” and again disciplinary lashes are mentioned. These points are presented as a qualitative half in the object: a full act done to something that is not “full-fledged meat” but only a “faint quality” of the prohibition. The Hazon Ish explains that “anything that is not full-fledged meat is prohibited, but its prohibition is weakened,” and he compares a lack of quality to a lack of measure.

It is said that this understanding raises a fundamental difficulty, because almost anything could then be considered “not completely” the prohibition and become a qualitative half measure. Rabbi Kook’s statement in Musar Avikha is cited, that a rabbinic fence testifies that it itself contains something of the prohibition it is guarding, and it is argued that such an extension could turn many fences into Torah prohibitions without lashes. The Ahiezer, part 3 section 34, rejects the concept of half a measure in quality and argues that half a measure applies only to a quantitative measure. He explains that Maimonides merely compares it to half a measure in the sense that there is a Torah prohibition here without lashes. The Maggid Mishneh says that the comparison to half a measure lies in the lack of lashes, and adds that according to Maimonides, things learned from interpretive extensions are not subject to lashes because they are considered “the words of the Sages,” and it is said that this aligns with the Ahiezer’s line.

A proposed interpretive rule is offered, according to which the comparative prefix in Maimonides is precise. An example is brought from the laws of a pursuer regarding a fetus: Maimonides writes that the fetus is “like a pursuer” after its mother, in a way that reconciles his wording with the Talmudic text, which says “Heaven is pursuing him” and does not establish this as a full law of a pursuer. From this the question returns: if “like half a measure” is only an analogy, then what is the source of the Torah prohibition in Maimonides regarding impure fat, eggs, and the sinews and membranes? It is said that the Maggid Mishneh gives a source in the exposition of “all fat,” whereas for the Ahiezer it is difficult to provide a source if this is not truly the law of half a measure.

Additional later authorities: the koy, “two people who did it,” “demolishing not for the sake of building,” and a vow that is miklash kalish

The Pileti in Beit HaSafek section 110 asks how one learns from “all fat” both the law of the koy and the law of half a measure, and he suggests that the koy itself is a qualitative half measure, because it is a hybrid that has dimensions of a wild animal and dimensions of a domesticated animal, and therefore its fat is a “qualitative half” of the forbidden fat. The Hakham Tzvi writes that “two people who did it” is prohibited by Torah law like half a measure, and the Sema says that demolishing not for the sake of building is prohibited by Torah law by the law of half a measure, though this is presented as strange because there is no lack in the act or in the object, but rather a change in purpose. Kiryat Sefer in the laws of vows says that the vow of a betrothed woman that was annulled only by the fiancé and is defined as miklash kalish is half a measure of the prohibition of a vow, and this comparison is presented as similar to the Pileti’s koy as a qualitative half.

Nachmanides on approaching forbidden sexual relations: “in the manner of half a measure” and a prohibition of benefit

Nachmanides, in his glosses to the Book of Commandments on prohibition 353, says regarding approaching forbidden sexual relations that it is rabbinic, or alternatively it would be Torah law because “anything that gives benefit from a prohibition is itself prohibited, in the manner of half a measure.” It is said that this wording appears to point to an actual half measure if this is indeed a Torah prohibition, because a mere analogy would not be enough to provide a source for a Torah prohibition. Rabbi Asher Weiss and Rabbi Lichtenstein suggest that the law in Nachmanides is a focused novelty in prohibitions whose foundation is benefit, and not a general principle of qualitative half measure, and that food prohibitions and forbidden sexual relations fit this because the foundation of their prohibition is benefit, as explained by Maimonides regarding Rabbi Abbahu’s words in Pesahim that wherever the Torah prohibited eating, it also prohibited deriving benefit. The principle is also mentioned that “one who was merely occupied with forbidden fats or forbidden sexual relations is liable, because he derived benefit,” as proof that the focus of the prohibition is the benefit and not necessarily the act of eating or intercourse. From this, half a measure is presented as a diminished benefit that still belongs to the same essential category.

The broad extension of “all fat” and its implications

A concluding suggestion is offered, according to which “all fat” is a broad basket-extension: anything that has any dimension at all of the prohibition of fat is prohibited by Torah law. Therefore one can include under it both the koy and half a measure, and also intermediate forms like half an act and half a result. It is said that if one adopts this as a general conception throughout the Torah, one arrives at a far-reaching conclusion, according to which almost anything that has any connection at all to a prohibition would become a Torah prohibition, to the point that it becomes difficult to explain why an unusual manner of performing labor on the Sabbath remains only rabbinic. The possibility remains that such an expansive interpretive force was said only regarding fat and not throughout the whole Torah, but it is emphasized that the way later authorities expanded half a measure pushes in the direction of a very broad extension.

Half a measure in positive commandments and the connection to beautifying a commandment

It is said that on its face, half a measure in positive commandments does not really belong, because in commandments there is no structure of “prohibition and punishment”; either one fulfilled the commandment or one did not. Therefore, if a person ate half an olive-bulk of matzah, it is not clear what the significance of the measure is. The discussion focuses on the question whether, when a full measure is impossible, there is value to partial fulfillment, such as someone who has only half an olive-bulk of matzah. The possibility of explaining this depends on the conception that half a measure in prohibitions is a “lighter mode” of the same prohibition and not the novelty of a separate prohibition. It is said that a straightforward fence conception does not fit positive commandments, and that the motivation to see half a measure as an independent commandment creates the absurdity of fulfilling two commandments one after another, so it is more fitting to speak about levels of fulfillment of the same commandment.

The words of Rabbi Lichtenstein are brought, that sources such as libations less than the full measure, or taking an incomplete number of myrtle branches and willow branches, show that less than the measure is ineffective. It is then said that this does not decide against partial value, because the question is not whether one has technically fulfilled the obligation, but whether there is practical value when wholeness is impossible. In passing, the view of the Raavad is brought, that one who betrothed a woman through an agent should go back and betroth her himself because “it is more of a commandment when done personally than through an agent,” with a discussion of how it can make sense to act again after one has already fulfilled the obligation. This becomes a basis for the idea that there are different levels of fulfillment even after a basic fulfillment. There is also a description of the position that beautifying a commandment is a full obligation based on “This is my God and I will beautify Him,” even though it does not prevent the core commandment, similar to blue dye and white strings in ritual fringes. From this it is said that half a measure in positive commandments can be understood as incomplete fulfillment as opposed to complete fulfillment.

Opening the topic of an oath regarding half a measure at the beginning of the chapter

The Talmudic text infers from the Mishnah’s word “forbidden” regarding Yom Kippur and establishes that the prohibition there concerns half a measure. From this it asks how that fits with the view of Reish Lakish, according to whom half a measure is permitted by Torah law and forbidden only rabbinically. The Talmudic question is brought from the Mishnah in Shevuot: “If one swore that he would not eat, and then ate carcasses, torn meat, detestable creatures, or creeping things, he is liable, and Rabbi Shimon exempts him,” along with the question: “Is he not already bound by oath from Mount Sinai?” Rav, Shmuel, and Rabbi Yohanan explain that the case is where the oath includes permitted things together with forbidden things. Reish Lakish explains the liability either in a case where he explicitly referred to half a measure, and according to the Rabbis, or in an unspecified case and according to Rabbi Akiva, that “a person can prohibit himself even by the tiniest amount.” In this way he makes the effect of the oath depend on the fact that, according to his own view, half a measure is not a Torah prohibition.

Oaths and rabbinic prohibitions: testimonial oath versus utterance oath

The Talmudic text examines the possibility of saying that since half a measure “has permission by Torah law,” an oath can take effect on it even though it is rabbinically prohibited. It rejects this on the basis of the law of testimonial oath, which applies only to those fit to testify, and excludes a dice-player who is disqualified only rabbinically. From here one might have inferred that an oath also does not take effect when the impediment is only rabbinic. It is said that among the medieval authorities (Rishonim) there is a logical jump here, because testimonial oath is not really a topic of “a prohibition taking effect on top of a prohibition,” but rather a question of whether the person is in the category of one who can testify and whether the oath is relevant to him. But the Talmudic text resolves this by saying that the verse “if he does not tell” defines the obligation of testimonial oath as depending on actual ability to testify, and therefore rabbinic disqualification removes the obligation there. By contrast, regarding an utterance oath, it is argued that the Torah prohibition of an oath can take effect upon a rabbinic prohibition as a stricter prohibition upon a lighter one. Therefore, according to Reish Lakish, one can say that an oath takes effect on rabbinic prohibitions even though half a measure itself is only rabbinically prohibited.

Summary of the positions: Reish Lakish versus Rabbi Yohanan and the question of rabbinic law

To sum up: according to Reish Lakish, an oath does not take effect on a Torah-level prohibition, but it does take effect on a rabbinic prohibition, and therefore one can incur the oath-offering in cases of half a measure according to his view. According to Rabbi Yohanan, an oath does not take effect on half a measure, because it is a Torah-level prohibition. An open question remains whether Rabbi Yohanan would agree that, in the case of a rabbinic prohibition, an oath does take effect, after the Talmud’s distinction between testimonial oath and utterance oath, or whether he would simply maintain that an oath does not take effect even on rabbinic prohibitions. The lecture closes by referring the listener to study the parallel Talmudic passage in Shevuot 23 and 21b, where the picture seems to come out the other way around, and also to look into Maimonides and the Shulchan Arukh in preparation for the next lecture.

Okay, let’s begin. In the previous classes we talked about the dispute between Rabbi Yohanan and Resh Lakish regarding the law of a partial measure. We saw a few ways of understanding it. In principle, this is divided into two sources that appear in the Talmudic text: the inclusion from “any fat,” or the reasoning of “fit to combine.” We talked about the relationship between those two sources. In the plain sense of the Talmudic text, it seems that they combine—“fit to combine”—these two sources, and that they are not two different alternatives, even though later authorities do try to build approaches saying that they really are two different alternatives. But in the straightforward reading of the Talmudic text, and also in the way we saw the medieval authorities (Rishonim) relate to it, that does not seem to be the case.

On top of those two sources, we built several understandings of the law of a partial measure. One possibility is to say that it is a safeguard. A second possibility is that it is “fit to combine” in the action, and “fit to combine” in the object. Meaning: if there is an olive-bulk—when I eat an olive-bulk of pork, then there is an act of prohibition here. So the quality of the prohibition also exists in a half, a third, or a quarter of an olive-bulk of pork. Because otherwise, if it does not contain the quality of the prohibition, then how can a quantitative change produce a qualitative difference? Zero plus zero should stay zero. And therefore, the quality of the prohibition exists even in the tiniest amount, but the quantity is lacking. That is the standard “fit to combine”; Rabbi Shimon formulates it that way, for example, and so on.

There are those who say “fit to combine” in the action. Yes, similar to carrying something two cubits in the public domain. The Meiri, for example, says there is no law of a partial measure there, but someone who does say there is a law of a partial measure there would say that if you carry four cubits, then in two cubits there is already the quality of the prohibition, only the quantity is lacking. We saw that the Sefat Emet, for example, at the beginning of tractate Sabbath, says that lifting without putting down is a partial measure in the action, and therefore there is no law of a partial measure there. You do not have to conclude from him that he agrees with the Meiri about the two cubits, because there is a difference between two cubits out of four and lifting without putting down out of the complete act of transfer. Two cubits out of four really is a quantitative difference within the same type of action, but lifting without putting down is not a quantitative half of transfer; rather, part of the quality of transfer is missing. And therefore there it could be that even those who say two cubits is a partial measure would admit that this is not a partial measure.

We saw there is a side to say that a partial measure is an independent prohibition, or that a partial measure is an extension of the original prohibition. We discussed whether “any fat” is an exclusion from punishment or an inclusion for prohibition. Because after all, “any fat”—meaning there was one approach in Tosafot Yeshanim that we saw, according to which one is even flogged for a partial measure, but according to most approaches not only is there no karet, there is not even flogging. And yet the prohibition remains. So how do we understand that? Does “any fat” include a prohibition on a partial measure, or on the contrary, does “any fat” exclude a partial measure from punishment? The prohibition exists by virtue of the original prohibition stated in the Torah. The Torah stated a prohibition on pork or on forbidden fat, so it is forbidden; all fat is forbidden. “Any fat” comes to say that the measure was stated only regarding punishment—that punishment applies only to a full measure, but for part of the measure there is no punishment. Meaning, the prohibition was not included from “any fat”; the prohibition was included from the original prohibition itself. The difference, of course, is that if the prohibition is included from the original prohibition itself, then it is pretty clear that we are talking about the original prohibition: one who eats a partial measure of forbidden fat has violated the prohibition of forbidden fat, not some other prohibition. If we are speaking here about a novelty in the prohibition itself—not an exclusion of partial measure from punishment, but a novelty that in a partial measure there is a prohibition—then there is room to say that a partial measure is an independent prohibition.

Okay. Now I want to bring a few sources here. Rabbi Weiss has some lecture on this issue. He brings several later authorities who speak about a partial measure in a somewhat broader sense. He does it in two different moves, but in my opinion they join into the same direction.

The first source—I did not bring them inside the text because I do not want to read all of them word for word; I will just describe what they say. Look afterward in the summary I’ll upload to Dropbox. There you will be able to see the sources and study them inside if you want. In Machatzit HaShekel on Orah Hayyim 316, he writes that someone who pulls a fish out of the sea, even before it dries to the extent of a sela—because it has not yet become dry—becomes liable for taking a life. Meaning, he has already violated a Torah prohibition by the law of partial measure, which is forbidden by the Torah—that is what he writes. According to this, what comes out, and Rabbi Asher Weiss notes this, is that if someone blocks his fellow’s mouth or drowns him in water, then he violates a partial measure of the prohibition of murder. And that is a huge novelty. Meaning, this is essentially a prohibition of murder without punishment. And there is room to discuss whether it would be a case of “be killed rather than transgress,” because if it is a prohibition of murder, it is entirely possible that “be killed rather than transgress” would apply to the prohibition even in a case where you are not liable to punishment for it. So that is a major novelty.

The matter of the fish is still a little different, because there the fish will die without his having to do another action. And if I block him or drown him, I only need to keep him in that same state. Right, but you are constantly—I am speaking about blocking, drowning. If I hold the fish above the water? What, because of gravity? Yes, and if I let go of it, it will fall back into the water—that is the same thing. I think there is a difference between them. Fine, no, but he did not speak about that case. I still think one could distinguish, but it does not matter, he did not discuss it. No, one can distinguish between the situations, but I do not think he makes that distinction between those situations; he speaks about a state where you are preventing him. No, because there really is here… And even if so, then I will distinguish between those situations in the case of a person too. No, let us say that you reject his novelty, but you agree that if the fish eventually dies, he violated the prohibition of taking a life, and you agree that he committed the prohibited act now. What do you mean? I did not understand. You mean he will die only after the Sabbath? That certainly not. Why certainly not? But right now this is a partial measure. It is very similar to the prohibition of cooking: he puts something on the fire and it will cook after the Sabbath, and certainly he… But there is a prohibition of partial measure here on the Sabbath itself. I did not understand. But there is a prohibition of partial measure on the Sabbath itself, even if it dies after the Sabbath. Right—wait—that is fine, but I am just explaining why in his view this differs from murder or something like that. Because in his view, you have done the act that generates liability; it is very similar to cooking. And there is a condition that this thing also eventually happen. Right, it is the same as cooking: you put it on the fire, and in order to be liable something else has to happen eventually—that it cooks. First of all, you are assuming that, and I am not sure it is true regarding taking a life. Regarding cooking and planting—no, I am explaining this in his words, that he compares it to cooking and planting, right. And then one can understand why it is a partial measure, because basically… And you are also assuming that in murder it is not like that. Yes. Because there is no reason in the world to say such a thing—what, that in murder, where a person killed someone else, it would also be like that? Why not? There is a condition that he die, but the act of murder is the prohibition. I do not know, maybe it is like that there too. What is the difference? But there are various Talmudic passages that if a person killed the other in such and such a way he is not liable—for example, if someone shut another person up and starved him. That is evidence for my side. No, why? Evidence for my side—that the action is the prohibition, and the fact that he dies at the end is only a condition. Therefore if he dies at the end without my action, then indeed I did not violate the prohibition. I see that as evidence for my side. That seems obvious to me.

Look, actually Tosafot writes in tractate Sotah—there, regarding someone who… yes, the Talmudic text says there that one who humiliates his fellow in public is as though he shed blood, and Tosafot learns from there that “be killed rather than transgress” applies to humiliating someone. Yes, with Tamar there, and the oven, and his wife. So that there is “be killed rather than transgress” regarding humiliation. That is of course very puzzling in Tosafot. In the straightforward sense, we are talking there about some aggadic statement—“as though he shed blood”—but to derive a halakhic conclusion from here is very far-reaching. But when they explain it there, they explain it based on the Talmudic text that, I think two lines earlier, says: when you humiliate him, the blood leaves his face, and there is an aspect of murder in this. Okay? That really does remind us of this reasoning of the Machatzit HaShekel, because it basically says that when the blood leaves the face, that is like a partial measure of murder, even though in the end he does not die, and it is not even supposed to happen in the end that he die. Rather, there is some kind of half—a half act of murder and a half result of murder—and perhaps Tosafot says that this is forbidden by the Torah and even “be killed rather than transgress.” Meaning, there seems to be punishment here—capital punishment Tosafot certainly would not say applies here. Why not? Seemingly according to Tosafot, he should have said that there would also be capital punishment here—“as though he shed blood,” no? Either I compare it or I do not compare it. It could be that Tosafot really wants to say something like that—that there is a prohibition of murder here without punishment, like a partial measure. But even a prohibition without punishment, since it is a prohibition of murder, would still be subject to “be killed rather than transgress” because of the prohibition involved. So what if it was excluded from punishment? In terms of the prohibition, it is a prohibition of murder, and therefore “be killed rather than transgress” applies.

Okay, maybe, I do not know. Just in passing: in Binyan Tziyon—yes, that is the responsa of the Arukh LaNer, Rabbi Yaakov Ettlinger—there he devotes several sections to discussing the law of “be killed rather than transgress” in interpersonal prohibitions. Among other things he brings this law, but there the explanation is completely different. It is not the draining of blood from the face, and not a partial measure, and nothing like that. There the point is simply that you cannot harm another person’s rights even when your life is threatened. You also cannot rob your fellow; you have to die rather than rob your fellow, as Rashi writes in the chapter HaKones. So that is another explanation of Tosafot’s law—but again, that is not my explanation, and it is something else; I am only mentioning it to complete the picture.

So that is the first example. A second example: the Hatam Sofer in Orah Hayyim section 607 writes that even though one is not liable for forbidden foods unless he swallows, during the chewing itself there is already a Torah prohibition because of a partial measure. Again, half of the action—but here it is more similar to lifting without putting down, not to two cubits out of four cubits, right? Here you basically have half of the action, and it is not a quantitative half. What is missing is another half of the action, not the same thing, just more of it. So here there is a statement perhaps even against the Sefat Emet.

In Nishmat Adam, in the laws of Sabbath, rule 21, he writes that at the beginning of cutting fingernails on the Sabbath there is already a Torah prohibition under the law of partial measure, even though the nails are still attached to the body—he has not yet cut them off. The Pri Megadim in Rosh Yosef on Sabbath 58 writes that if one cooks water, even if it has not yet reached the level of “the hand recoils from it,” this is forbidden by the Torah because of a partial measure. Also in the responsa Beit Yitzhak he writes the same thing. All these things come from Rabbi Asher Weiss’s breadth of knowledge, not mine, so I am not taking the crown for myself. The Hazon Ish too writes this as a possibility. Ezer MiKodesh writes that according to Nachmanides, who holds that physical closeness to a forbidden sexual relation is not a Torah prohibition, unlike Maimonides—Nachmanides disputes Maimonides in the Book of Commandments—still, in any case, there is a prohibition of “half of the Torah,” by the law of partial measure, because by its nature closeness is bound to lead to intercourse. Later we will see this Nachmanides; that is not the explanation there. But that is how he argues that it is forbidden under the law of partial measure. Meaning, Nachmanides says it is forbidden under the law of partial measure; Ezer MiKodesh explains why it is forbidden under the law of partial measure: because it is destined to lead to intercourse; it is the beginning of the act of intercourse. Okay?

So all these are in fact examples of half an action, not half of a quantitative measure, where one violates by the law of partial measure. But if I want to classify these examples, I set out at the beginning of the class two opposite examples. One example was the Sefat Emet’s case of lifting without putting down. The second example was the Meiri’s case of two cubits out of four. Two cubits out of four—both are examples of a partial measure in the action and not in the quantitative size of the object. But there is a difference between them, because two cubits out of four really is doing the full action, just on part of the quantity. True, there is no quantity of object here, but you are still lacking only a quantitative measure. You did exactly the same action, just on less quantity—two cubits instead of four cubits. And in the Sefat Emet, where a person only lifted and did not put down, this is a qualitative half, not a quantitative half. He did not do the whole—let us say someone transfers from the private domain to the public domain half a dried fig’s bulk; that is a quantitative partial measure. But one who merely lifts without putting down, that is a qualitative half. It is not like two cubits out of four cubits.

Now most of the examples I brought here from Rabbi Asher Weiss seem to me to fall a bit in the middle between those two extreme examples. I brought—apparently most of them are examples that resemble the Sefat Emet more than the Meiri, where it is a qualitative half of the action. But I think there is still some difference. Someone who is chewing in his mouth and has not yet swallowed—the feeling, I do not know, it is hard for me to define it, but the feeling is that this is different from someone who only lifted and did not put down. Because here it really looks like the continuation of one action, where you did some part of it. True, it is not exactly the same part as what comes later, but it is not two separate parts of the action; rather, it is some ongoing action that you began and did not finish. Lifting without putting down can be viewed as an independent action. So I do feel there is nevertheless some difference between the two things. What happens in… as you said, simply, lifting without putting down is something people do by itself, but nobody chews without swallowing. Yes, that is what… no, in principle you can chew and spit it out. Right, yes, but people do not do that. So therefore the action is defined as chewing and swallowing, whereas lifting really is done without… Right. Although again, the continuation—right—but on the other hand it is also not like two cubits out of four, because the continuation is not the same thing, just doing more of it. That is true. It is still something else. So this is an in-between case, somewhere between the Sefat Emet’s case and the Meiri’s case.

Also with someone who pulls a fish out of the sea, this is a partial measure in the result, not even in the action. Meaning, a partial measure in the result: I did the action; as such, I pulled the fish out of the sea. Now the only question is how long I wait until the story is finished. That is already quite similar to two cubits out of four, but still not entirely. Because there is still a difference between a meter and half a meter that is not merely quantitative, it seems to me. Again, it is a bit hard to define these things, but I think that is the feeling.

The beginning of cutting the fingernails—maybe that is closer to two cubits out of four, because you began to cut part and did not cut completely. But again, “part” and “completely” already shows that this is not two versus four. Four is an arbitrary boundary. The boundary could also have been three, two, or five. The fact that they fixed the boundary at four does not mean that four is some integral or natural size. By contrast, cutting fingernails so that they are fully cut is something very natural to define as a result. When they are half cut, it is not only a quantitative half of fully cut; there is still some qualitative lack here too.

Regarding cooking water that has not yet reached the level of “the hand recoils from it,” again, this is part of the heat. And again, I do not know—this is even closer to two out of four, and still I do not think entirely. Closeness to forbidden sexual relations is again half of the result. There is closeness that is going to lead to intercourse, but not—sorry, not half of the result. Half of the result is Nachmanides himself; Ezer MiKodesh does not explain him that way. In my opinion, mistakenly—but he explains him differently. He said there is a partial measure because naturally it will lead to intercourse, and basically you have done half an act of intercourse. It is like, “what difference whether he killed him entirely or killed him halfway?” The Talmudic text itself says, after all, “what difference whether he killed him entirely or killed him halfway?” regarding someone who cuts off his fellow’s hand, one who injures his fellow, yes? Or injures a slave. “What difference whether he killed him entirely or killed him halfway?” It is like killing—just half-killing, not fully killing.

Now there the Talmudic text does not bring it in order to say there is a prohibition of partial measure. On the contrary, from there I would say there is even a bit of a comment against those who want to argue that there is a partial measure here, because then the Talmudic text could have said so more explicitly—said that this is basically a partial measure of the prohibition, not merely that it is sort of like it.

Now in all these examples, we have to discuss them according to the different reasonings we saw regarding partial measure. The standard “fit to combine” reasoning, what I brought in the name of Rabbi Shimon—that the quality of the prohibition exists in every part if it exists in the whole—I think in most, at least most, of these examples that is not present. For example, chewing without swallowing is probably the easiest place to demonstrate it. Chewing without swallowing—it is hard to say that chewing has the quality of complete eating, because otherwise how does it combine with swallowing? Chewing has the quality of chewing; swallowing has the quality of swallowing; and those qualities together combine to create the quality of eating. But you cannot say that the first half contains the quality of eating and only lacks quantity. That reasoning, in my view, does not apply to this example of the Hatam Sofer.

In taking a life, or cooking water to a point where the hand does not yet recoil from it—perhaps with difficulty one can say it, I do not know exactly, but even there I think it is difficult. Also, when they derive partial measure from the verse “any fat,” it says “any fat”—any amount that is fat. Meaning, it really looks like a quantitative measure or a quantitative part of the thing, not part of the action. That seems a bit strange.

The safeguard reasoning, though, certainly fits all these examples. These examples, I think, smell like the safeguard approach to the law of partial measure. If I say that the measure—let us say the law of measure was stated only regarding punishment, but the prohibition exists in any amount, meaning that “any fat” comes to exclude punishment rather than include prohibition—then it seems to me that in all these cases it does not make sense to say there is a prohibition of partial measure. You cannot say that in all these cases the full prohibition is there and only punishment is lacking. That sounds really strange. A quantitative measure one can say is a condition for punishment, but to say that after chewing there also has to be swallowing and that this is only a condition for punishment and not for prohibition—that is very strange.

So that is regarding the examples Rabbi Weiss brings. Then he himself later, in a later section there in the lecture, brings two passages from Maimonides. Here I did bring them so you can see them. In the laws of forbidden foods, Maimonides writes as follows in chapter 3: “Even though the milk of a non-kosher animal and the eggs of a non-kosher bird are forbidden by the Torah, for what comes from an impure source is impure, one is not flogged for them, as it says, ‘You shall not eat of their flesh’—for the flesh one is flogged, but not for the egg or the milk. Yet one who eats them is like one who eats a partial measure, which is forbidden by the Torah though one is not flogged for it. But he is given disciplinary lashes.”

So Maimonides says that one who eats them is like one who eats a partial measure, which is forbidden by the Torah. Now what is the partial measure here? It is basically not entirely the flesh of a non-kosher animal; rather, it is milk or eggs of a non-kosher animal, of a non-kosher beast or bird. So it is diluted flesh, let us say; a qualitative half. But this qualitative half is not like any of the types of halves we saw until now. Maybe, maybe, like closeness to forbidden relations in Nachmanides, and again not in Ezer MiKodesh’s explanation. Because here, in effect, you did the whole forbidden action, but you did it on something that is not fully the forbidden thing; rather, it has half of the quality—not the quantity—of the forbidden thing. It is not half of the action; the action is complete. It is half of the object. But in the object itself, it is a qualitative half, not a quantitative half. Meaning, this is somewhat non-kosher flesh—it is not entirely flesh, because it is milk and eggs; it is not the flesh itself. But it is like a partial measure, and therefore it is forbidden by the Torah, one is not flogged, but he receives disciplinary lashes.

Also in the laws of forbidden foods, in chapter 7—does Maimonides mean to say this is literally called violating a partial measure, or does he mean its law is like that of…? Good question. I’ll get to that in a moment. Again, there in chapter 7 of forbidden foods he writes: “It appears to me that all these strands and membranes are forbidden by rabbinic law. And if you say they are forbidden by the Torah under the category of all fat and all blood, one is not flogged for them but receives disciplinary lashes, and they would be like a partial measure, which is forbidden by the Torah though one is not flogged for it.” Again, very similar. Okay? It is not exactly fat and blood, but it is a bit of it; diluted fat and blood. So it is like a Torah partial measure, which is forbidden by the Torah and one is not flogged for it.

Now several later authorities derived from here the law of a qualitative partial measure. But again—not in the quality of the action, as we discussed earlier, but in the quality of the object. The action is complete; the object’s quality is partial. The Hatam Sofer says this in several places, and other later authorities as well.

Here there are several points to note. The Hazon Ish says: “Anything that is not complete flesh is forbidden, but its prohibition is weakened; and just as less than an olive-bulk does not have the required measure, so too where it lacks the requisite quality, it lacks the measure.” The Hazon Ish understood this as a qualitative partial measure; that is how he explained Maimonides. Now as I said, this is a partial measure that is different from all the halves we saw until now, because it is half in the quality of the object, not in the quality of the action. It is in the object, but not in its quantity—rather, in its quality.

Now according to these conceptions, it is hard. It is a bit hard to understand what would not count as a partial measure. Almost anything one could say contains the quality of the full prohibition, just not completely. Every safeguard, every… By the way, there is some statement of Rabbi Kook—I think it is in Musar Avikha—where he writes that if the Sages forbade something as a safeguard, the fact that this thing is a safeguard for another prohibition says that it itself contains something of that other prohibition. Which sounds like some sort of mysticism. Meaning, let us say they forbade poultry with milk out of concern that you will come to eat meat with milk. Rabbi Kook says: on the surface this looks like a prohibition out of concern; this itself is not forbidden. It is forbidden only out of concern that you will come to do something that really is forbidden. Rabbi Kook says no—the very fact that this can lead to that hints to us that this itself contains some element of the problem of meat and milk.

Now in light of what I said here, one can understand this much better. Because what Rabbi Kook writes—or what may be implicit in Rabbi Kook—is still only a rabbinic prohibition. According to what I am saying here, it could even be a Torah prohibition. All safeguards would become Torah prohibitions according to this. A Torah prohibition on which one is not flogged. Why? Because the argument is that when you… why is it really that if you allow people to eat poultry with milk, they will come to eat meat with milk? Presumably because there really is a similarity: poultry meat is also a kind of meat, just weakened meat—not quite meat, but like meat. Okay? Then what these later authorities are telling us here is that weakened meat is like eggs or milk or membranes or whatever—so weakened meat is a Torah prohibition without flogging, of partial measure, “any amount that is fat.” Then you can take Rabbi Kook even farther than he took himself. He explained it in terms of the reason of the verse, with mysticism, yes—that the Sages in effect prohibited it rabbinically, and there is some issue there. Here the claim is that it may even be forbidden by the Torah, a halakhic issue. One is not flogged, but it is still forbidden by the Torah. According to those later authorities, I do not see the difference. Seemingly every safeguard should be like that. One can argue a bit, but at least there is room to say so. Certainly according to the way Rabbi Kook presents safeguards.

Indeed, in Ahiezer, part 3, section 34, he writes: “I do not understand what a qualitative partial measure is. If the quality of the prohibition is not there, then it is not forbidden.” A partial measure applies only to quantitative size. Therefore he explains Maimonides the way Binyamin said earlier, and that is definitely an intuitive explanation, apparently: Maimonides did not mean to say that this is a prohibition of partial measure. Rather, he compared it to a partial measure. Just as a partial measure is forbidden, so too this prohibition is forbidden. Just as we find in a partial measure that there is a Torah prohibition without lashes. Okay? And I think we even saw in the Talmudic text that the baraita brought by the Talmudic text here wants to learn from “any fat” that there is a warning without lashes, without punishment. Right? That is the wording of the baraita in our Talmudic text. Meaning, “any fat” really teaches not only the law of partial measure as such, but the basic principle that there can be a state in which you violate a Torah prohibition without receiving punishment, while it still remains a Torah prohibition. And perhaps that is what Maimonides wanted to take from partial measure. But it is not that this is actually forbidden by the law of partial measure.

The Maggid Mishneh, for example, argues similarly. He says the comparison to partial measure is only in that one is not flogged for it. But he claims one is not flogged for it because it is an inclusion. And according to Maimonides’s view, for things learned from interpretive exegesis such as inclusion, one is not flogged because this counts as “words of the Sages.” I already mentioned this before. So that essentially converges with what the Ahiezer says.

Actually I once had—not exactly a reasoning, but an interpretive rule that could support this approach. When Maimonides, I think, uses the comparative letter and says “this is like a partial measure”—he said it in these two laws—when Maimonides uses “like,” and this is not unreasonable, the rule is that with Maimonides one is precise with his wording. And there is a very subtle precision here. I think it is entirely possible to accept that Maimonides knows when to say “this is a partial measure” and when to say “this is like a partial measure.” I collected three or four examples of difficulties later authorities raise against Maimonides in places where he writes with the comparative “like,” and the questions are resolved when one understands that “like” is not identity; it is only comparison.

One example I remember at the moment—I had others too—one example I remember is, for instance, regarding a fetus that has not yet put out its head and is pursuing. In the Mishnah in Ohalot, when it endangers its mother’s life, we kill the fetus. Fine. Why do we kill it? In the Talmudic text it says seemingly by the law of a pursuer. But the Talmudic text says if it were by the law of a pursuer, then even if it had put out its head—if it has put out its head, we do not kill it. Only if it is still inside do we kill it. Its head or most of it—there are different versions—but if it has already emerged to some degree, then we no longer kill it. And the Talmudic text says: so why do we kill it while it is inside? It says, if we kill it by the law of a pursuer, then why should it matter that its head emerged? Even if its head emerged, we should kill it, because a pursuer is killed even if he is a living human being. Therefore it is clear that this is not by the law of a pursuer. “Heaven is pursuing him”—it is not by the law of a pursuer. So why do we kill it? Because the value of its life is less than the value of the mother’s life. So if I have to decide whose life to save, I save the mother’s life at the price of the fetus’s life, because the fetus’s life is less fully human life. Once it has put out its head, it is already considered a person, and since there is no law of pursuer here, then “who says your blood is redder than his?” Therefore one cannot kill it in order to save her. But as long as it is still inside, then its blood is less red than hers, and therefore we kill it. Okay?

By the way, this is an interesting source for another argument I once made—now I suddenly think of it; I had not thought of it—that in a case where one can show there is a difference in the “redness” of the blood, then yes, one does… it is possible to kill the less red blood in order to save the redder blood. For example, someone who is brain dead. My argument is that even if we do not define him as dead, organs may be taken from him and transplanted into another person to save him. Usually they hang this on the question whether he is already considered dead after brain death, or only after cardiac death. I wanted to argue that this does not depend on the question of when we define the moment of death. If he is brain dead, his blood is less red, because obviously within a few hours he will die. And therefore one may take an organ from him even if he is considered alive. It is permitted to kill him in order to save someone else, because his blood is less red. At least with his consent, I claim—I am not talking right now without his consent. Consent given in advance, of course; now he cannot consent to anything.

Okay, but for our purposes: what I am saying now is that the fetus is a good example of this. Because Maimonides says there is not really… the Talmudic text says there is no law of pursuer here, so why is it permitted to kill the fetus? Because its blood is less red. Because without the law of pursuer, how is it permitted to kill it? But when Maimonides brings this law, he says that we kill the fetus because it is like a pursuer after her to kill her. Everyone asks—there is the Pri Megadim, and Rabbi Hayyim—and they all challenge Maimonides: what is this? The Talmudic text says this is not by the law of pursuer! What does he mean, “like a pursuer after her to kill her”?

I argue that what Maimonides says is “like a pursuer” after her to kill her. What does that mean? That if there were no element of pursuit here at all—if he were not pursuing the mother—then despite the difference in the value of the lives, we would not kill him. Because he should not have to pay with his life in order to save the mother as long as he is not pursuing her; then he is not at fault. Again, not “at fault”—not that he is not guilty; rather, he is not the cause of the danger. Because even a minor born alive is not guilty when he is a pursuer, and there is a dispute among the Amoraim about this, but the Jewish law is that we kill a minor pursuer even though he is not guilty. I am not speaking about guilt; I am speaking about who creates the risk. So here I say: if he were not creating the risk, why would we kill him? It would be like simply killing someone else to let the sick mother eat him so that she could live. Why on earth? What justification would there be to kill another fetus—not her fetus? No. So Maimonides says: only because there is indeed an element of pursuit here, but it is not full pursuit, because “Heaven is pursuing him,” so it is “like a pursuer.” Therefore, if I add that to… and “like a pursuer” alone also does not justify killing him, because it is like a pursuer, not a pursuer. So neither the difference in the redness of the blood justifies killing him, nor the law of “like a pursuer” justifies it alone. But if there is a difference in the redness of the blood, and the less-red blood is also like a pursuer after the owner of the redder blood, then it is permitted to kill him.

Again, one can argue about this. But my claim again is that this comparative “like” here is very important, because it is not the law of a pursuer. Then all the pilpulim of the later authorities can be thrown away; there is no need to get to them, no need for them. Rather, it is “like a pursuer.” Maimonides does not mean to go against the Talmudic text and say it is a pursuer. It is like a pursuer, and therefore there is permission to kill the fetus. If there were no element of pursuit here at all—the partial measure of pursuit, yes?—if there were no element of pursuit at all, then it would be forbidden to kill him. So here too he says it is like a partial measure.

The big problem is—and this is what Binyamin said earlier, yes?—that in essence… Maimonides does not mean to say this is a partial measure. He brings partial measure to show an example where there is also a Torah prohibition despite the absence of punishment. The big problem is: fine, so it is not partial measure—but then what is it? There is another source, after all. So how do you know it is a Torah prohibition if it is not by the law of partial measure? You eat these membranes, or the egg, or the milk. How do you know? So perhaps it is not forbidden by the Torah, but only rabbinically. But Maimonides innovates that it is a Torah prohibition. That is Maimonides’s innovation. On what basis? If the source is partial measure, as those later authorities say, then he has a source. But if partial measure is only an example to show that there can be a prohibition without punishment, then yes, here too there can be a prohibition without punishment, that is perfectly fine—but now bring me a source for this prohibition. You do not have one.

So notice that in this sense the Maggid Mishneh is not like the Ahiezer, because the Maggid Mishneh claims there is a source. The source is the exposition of “any fat.” Since the source is only an interpretive exposition and not something explicitly written in the verse, one does not punish for it. Okay? But there can still be a source for the prohibition in that exposition. The Ahiezer, however, claims no—not that there is a source from an exposition. Rather, this is just an analogy; so the question is, where does Maimonides get it from? What is his source? And that is a hard question. I do not know how the Ahiezer would answer it.

Indeed, quite a number of later authorities really learn from Maimonides that his source too is the law of partial measure, and that he is innovating here a qualitative partial measure. That is his claim. For example, the Pletei in Beit HaSafek section 110 asks our question—he merited to hit the mark with divine inspiration, yes?—the question I asked in the previous class or really in the first class: how do we learn from the same verse, “any fat,” from the same extra word, both the koy and partial measure? These are two things derived from one redundancy. Usually when the Talmudic text learns one thing from a source, it immediately asks: then where do we learn the second from? You do not derive two things from the same source. How do they derive two things?

There I spoke about this and said: “any fat” means anything connected somehow to fat. There are inclusions that really are basket-type inclusions, which contain a lot inside them—anything related in some way to the thing. But if one does not learn it like that, then this is indeed a hard question. So the Pletei claims that the koy is also a partial measure. It is not two laws; it is one law. Why? Because what is a koy? It is a deer that mated with a goat. So this means wild and domesticated animal, yes? Meaning, it is a hybrid of wild animal and domesticated animal. Now the fat that is forbidden is the fat of a wild animal, not the fat of a domesticated animal. So the fat of the koy contains a qualitative half that is wild-animal fat, with a qualitative half… it is not physically half-and-half, because there is not half wild-animal fat and half domesticated-animal fat there. Rather, this is half in the sense that this fat belongs to an animal that has dimensions of both domesticated and wild animal. An animal that has dimensions of domesticated animal in it—so it is a qualitative half of wild-animal fat. And therefore it is a partial measure. So these two inclusions stated from “any fat” are two inclusions from one verse, but they are not really two separate inclusions. It is one inclusion. Here too, of course, there is a statement about a qualitative partial measure, not a quantitative one.

For example, in the Hakham Tzvi, he writes that “two people who performed it” is forbidden by the Torah like a partial measure. “Two people who performed it”—say, two people transfer an object from the private domain to the public domain. So here too he is speaking of doing half the action. Here it is not half—by the way, not a qualitative half in the object, but half the action. This perhaps joins the examples above. In Shem MiShmuel, “demolishing not for the sake of building” is forbidden by the Torah under the law of partial measure. Here this is really strange, because here nothing is lacking in the action; the goal of the action is simply a different goal. This is a labor not needed for its own sake—demolishing not for the sake of building. But why is it a partial measure? It is a complete action on a complete object; the purpose is different. Okay?

Kiryat Sefer in the laws of vows writes that a vow of a betrothed girl annulled only by the fiancé and not by the father—because in principle, for a betrothed girl they both need to annul it—if it is annulled by the fiancé and not by the father, the Talmudic text calls this “weakened.” There is a dispute in the Talmudic text, but according to the side that says “weakened,” the vow is weakened but still exists. Kiryat Sefer claims that such a vow is a partial measure of the prohibition of a vow. Again, a very qualitative partial measure, very similar to the koy of the Pletei.

I mentioned Nachmanides, whom Ezer MiKodesh brings in the glosses to the Book of Commandments, prohibition 353. I will show you his wording so you can see why Ezer MiKodesh is not correct. Because there Nachmanides says that closeness to forbidden relations is not a prohibition, as Maimonides writes. Maimonides writes it is a prohibition, and Nachmanides says it is not a prohibition. It is basically forbidden only… but he says: “But with them, the prohibition is rabbinic, or it may be by the Torah, because anything that gives one pleasure from a prohibition is itself forbidden, as in the case of a partial measure.” Again, there is room to wonder—is “as in the case of a partial measure” a comparison, or actual partial measure? Here too there is a source—the source is Maimonides’s source, “Do not come near to nakedness,” do not come near a forbidden relation. That can be a source, at least as a support text, for a rabbinic enactment. So one can say that there is a rabbinic prohibition, and he says it is sort of like a partial measure, or something like that, I do not know. But if he says it is a Torah prohibition, then once again the question arises: if it is only an analogy, what is the source? If it is the source, then it is not an analogy; it is a Torah prohibition. And then indeed when he says “it may be by the Torah, as in the case of a partial measure,” he means by the law of partial measure, not merely analogy, because otherwise how is it forbidden by the Torah?

So here we really see that there is… and by the way, here he also gives the explanation: “anything that gives one pleasure from a prohibition is forbidden.” That is the reason he gives. What does he mean? It seems he means partial measure at the level of your pleasure. If the same pleasure that the Torah prohibited is present, but only partial pleasure, part of the pleasure, then that is the law of partial measure. And it could be that one cannot derive from Nachmanides a general law of qualitative partial measure, as all the later authorities I mentioned earlier claim. Rather—as Rabbi Asher Weiss argues, and I also saw something very similar in Rabbi Lichtenstein—they argue that the prohibition of closeness to forbidden relations according to Nachmanides is a specific prohibition regarding things where what is forbidden in them is the pleasure derived from them. And only there. It is not a general law of partial measure. The claim is that there are prohibitions, like eating prohibitions or sexual prohibitions, where the essence of the prohibition is to derive pleasure from the forbidden thing, or from the forbidden intercourse. In such a case, if you derive the same pleasure but in a lesser quality, then you have violated the prohibition. This is a novelty said about prohibitions whose basis is pleasure, not a general principle of qualitative partial measure.

And still, as I said earlier, even if such a thing exists, one has to understand its root. Where do we derive it from? If we derive it from “any fat,” then this itself is the law of partial measure; you are simply limiting it to those things in which the essential prohibition is deriving pleasure. But it is the law of partial measure itself, because you derive it from “any fat.” If you do not derive it from “any fat,” then what is the source? How do you know that in prohibitions of pleasure there is such a principle that half is forbidden by the Torah? That something lower in quality is still forbidden by the Torah?

One has to remember that a prohibition involving pleasure includes both eating and sexual relations. Meaning, the dispute between Rabbi Yohanan and Resh Lakish regarding fat or the Day of Atonement is basically the dispute about partial measure in relation to pleasure. Therefore the law of partial measure means that when you have half the pleasure, it is like diminished pleasure, and that is half the result. And basically what is prohibited here is the result. Also in eating prohibitions there is Maimonides’s well-known principle: Maimonides says that wherever the Torah forbade something, one meaning of eating prohibition and one meaning of benefit prohibition are implied, unless Scripture specifies for you otherwise, as it specified in the case of carcass meat. So what is the explanation for this? Maimonides says that when the Torah says not to eat, it basically means not to derive pleasure. Eating is only the example it used because that is the common form of pleasure. But really it meant to give an example: in principle it is forbidden to derive pleasure in any way. If so, then it indeed seems that eating prohibitions and sexual prohibitions are prohibitions rooted in pleasure. Therefore one who acts unawares in forbidden fats and forbidden relations is liable because he derived pleasure—sorry, not exempt, because he derived pleasure. Why? Because the essential prohibition is really the pleasure, not the action that brings one to the pleasure. Therefore, if you acted unawares, you are liable. Of course, there he did do the action; he just did it unawares. Here we are speaking about a case where he did not even do the whole action. That is more far-reaching, more novel. But still, this is basically the conception they want to propose, and it is the conception in the law of partial measure itself. It is not something else.

But I want only to conclude this section of the class with one sentence. I mentioned the question I raised in the first class: how do we learn two different things from “any fat,” both the koy and partial measure? The Pletei went in his own direction. I want to argue something similar to the Pletei, but also similar to what I said there—and this comes out much broader. The inclusion of partial measure is basically just an example. Anything connected somehow to the prohibition—like fat—will be forbidden. A koy is connected somehow to the prohibition, so it is forbidden. A partial measure is connected somehow, so it is forbidden. Chewing without swallowing is connected somehow to the prohibition. Anything that contains something of the prohibition—it too will be forbidden by the Torah.

The claim sounds very far-reaching, but from the very fact that they include two different things from the same verse of “any fat,” and I explained that the simple explanation is “any fat”—anything that has some dimension of forbidden fat is forbidden by the Torah—that certainly sounds like some very broad inclusion, and anything that contains a dimension of the prohibition of fat is forbidden by the Torah. Then you can include it in every direction: quality, quantity, action, object, result, whatever you want. Anything that is somehow connected.

Of course, if that really is the principle learned from “any fat,” then one could definitely say that it was said about fat, but not about the whole Torah. Because understand: if I accept what those later authorities there are saying, and I base it on what I now said about “any fat,” I do not know what in the world would not be forbidden by the Torah. Because almost everything in the world that is somehow connected to a prohibition—you can always find some connection to a prohibition—would become forbidden by the Torah. There would remain almost nothing that is only rabbinically forbidden or even permitted. Why is doing a labor unusually on the Sabbath only rabbinically forbidden? You did it unusually; it still contains a dimension of the forbidden action itself, only you did it unusually. So according to Rabbi Yohanan it should be a Torah prohibition, not rabbinic. And in many, many other places one could see this. So it sounds extremely far-reaching. So I do not know what to say. But these later authorities I brought here—it seems that this is probably the natural explanation of how they understood it, I do not know.

Okay, let’s take a short break. We’ll take a five-minute break and come back. I’ve already wandered off a bit too far. Okay.

We’re back, friends. Turn on your cameras, come back to us. “Smuggling, come back home,” as they say. Okay. I now want to continue with—I want to finish the introduction to partial measure, which at this point, considering how much time this has taken in Elul, sounds a little strange, but it is what it is. I want to finish with a short discussion—really short—about a partial measure in positive commandments.

Later authorities discussed the law of partial measure in positive commandments. Do we also say there that if he fulfilled the commandment with a partial measure, he has discharged his obligation? Has he done the commandment? On the face of it, it seems inapplicable. Everyone discusses this somehow, and I… I did not see—surely there is something; I just did not dig enough—but I did not see a systematic treatment of the issue. Because on the face of it, it simply does not apply. If we say he has fulfilled his obligation, then for what purpose was the measure stated? Let us say for eating matzah: I ate half an olive-bulk of matzah, okay? If we say I have fulfilled my obligation, then what is the meaning of the olive-bulk measure in this commandment?

With forbidden fat or with prohibitions, there is the prohibition and there is the punishment. So one can say there is a prohibition, but no punishment if you ate a partial measure. But a partial measure in positive commandments—there is no reward in an earthly court, at least, for positive commandments. So what remains in halakhic terms? Basically there either is a commandment or there is not. And if a measure was stated in this positive commandment, then apparently less than that measure is not the commandment. In what sense can you say you fulfilled a commandment when you did it with less than the required measure? Let us say you fulfilled the commandment but will not get reward in the heavenly court? That sounds strange. What, the whole measure was stated only for reward in the heavenly court? Maybe the practical difference is that one would compel him even to fulfill a partial measure? Suppose he can do only a partial measure—would we compel him, or not? I wanted to say even without compulsion. Just he himself, even before we compel him. That certainly—but then the practical difference is only in the heavenly court, basically. Fine. To bring it down to us, even without a practical consequence, he still should do it. He has a weakened commandment, some less significant commandment, but it is still not a neutral or valueless act. That, it seems to me, is something one can discuss. Okay?

But that can be discussed only if I understand that partial measure on the prohibition side, on the side of the negative commandments, is not flogged because it is a less severe prohibition, as we saw in Nachmanides and others. It is a less severe prohibition and therefore one is not flogged. And not only that, but that it is the same prohibition, only one violates it in a lighter way. Therefore there is a prohibition, in a lighter way, but no punishment. Usually the concept is: what is a lighter prohibition? You violated the prohibition—either you violated it or you did not. But there is room for a reasoning that says that in such a case you did violate the prohibition, but because there is no punishment there must be some lighter way of violating the prohibition. Now if that is so, the possibility opens up in positive commandments too to say the same thing: that there is a way to do the positive commandment in the most complete manner, if you do it at the full measure, and if you do it at a partial measure, you did the positive commandment in an incomplete way—something like that.

So here, of course, where you do have the full measure available, I do not think there is room to say: do the partial measure and that is also fine. Therefore this can perhaps fit the “fit to combine” conception, whether we derive it from “any fat” or not. The safeguard conceptions are much harder, unless we say the safeguard the way I said earlier regarding Rabbi Kook: that if it contains the dimension of the complete thing, then it itself contains the quality of the prohibition. Then we are back to the regular “fit to combine” reasoning. But if it is a safeguard in the usual sense—for example, these later authorities who say that if you do it close to the end of the Day of Atonement, there is no prohibition of partial measure—then it is clear that this is a straightforward safeguard conception. It is not the “fit to combine” conceptions. So in that context I think it does not make sense to speak about this with regard to positive commandments.

If partial measure is an independent prohibition learned from “any fat,” then one could seemingly say similarly that in positive commandments there would be an independent positive commandment to do it in a partial measure—again, of course, as I said before, only where you cannot do the commandment in its full measure. But then it is no longer clear why define it as an independent commandment. Then define it as the same commandment at a lesser level. Because if it is an independent commandment, then eat a full measure and afterward also eat a partial measure and fulfill that commandment too. Why not fulfill both commandments? There cannot be no connection between them. So the motivation to define it as an independent commandment sounds very strange to me. You can say it is the same commandment at a lower level, not at the complete level. So if you cannot do it at the complete level, at least do it in this way.

In short, it is hard to say that in positive commandments this would literally be a commandment. But there may be room to say that there is value in doing it if you cannot do the full measure. Now Rabbi Lichtenstein, for example, in the lecture I mentioned earlier—you’ll see a summary later and I’ll send links there—wants to argue that there are many sources where we see this does not work. For example, in libations brought with sacrifices, the Talmudic text in tractate Menahot says that less than the required measure does not help; you do not fulfill your obligation. That is evidence that partial measure does not apply to positive commandments. But that proves nothing, because as I said before, obviously if a measure was stated then one has to bring the proper measure. There is no issue here of punishment versus commandment as in prohibitions. Here the measure is the definition of the commandment. The only possible thing to say is that if you do not have the full measure, then bringing half is also worth something, or at least has some value. So the fact that if you brought half you did not fulfill the commandment does not prove that there is no value in bringing half when you cannot do the whole thing.

Even more so, in libations it may be that if you cannot do the whole thing then do not bring it at all, because that might be non-sacred produce in the Temple courtyard, or because you are bringing something that does not fit the laws of sacrifices. So it may even be forbidden to do so, I do not know. One could say that, but one does not have to. Even if they tell you that you did not fulfill your obligation, that does not prove there is no concept of partial measure here.

The same thing with what Rabbi Lichtenstein says: what if you took two willow branches, or one myrtle branch, yes? Or put fringes on a three-cornered garment instead of four? Such a partial measure obviously does not work. True. But again, he brings this as proof that partial measure cannot exist in positive commandments. In my opinion that misses the point. Obviously there cannot be half a commandment through a partial measure in positive commandments. If you do not do it according to the measure, you did not fulfill the commandment. The whole discussion is only whether, if you cannot do the full measure, there is value in doing part. You do not have three myrtle branches, so you bring only two. Does that have value, or is it pointless? Forget it, you missed the commandment, you were under compulsion, there is nothing to do. Here there is room to discuss it—no, it also has some value; bring it. But of course that does not mean you fulfilled the commandment. If afterward a third myrtle branch becomes available, obviously you have to do the commandment with all three myrtle branches; you did not fulfill your obligation.

By the way, in passing—I saw this not long ago—the Talmudic text in Kiddushin at the beginning of chapter two says that “it is a greater commandment to do it oneself than through an agent.” For example, preparations for the Sabbath, or betrothing a woman through an agent. The Talmudic text says that of course it takes effect, but it is a greater commandment to do it oneself than through an agent. The Ra’avad holds—the Rivash brings him in his responsa in two places, if I remember correctly—that if a person betrothed a woman through an agent, he should go back and betroth her not through an agent, in order to do it in a more enhanced way. Now that is astonishing. Once you betrothed her, she is already your wife. What does it mean to go back and betroth her in a more enhanced way? She is already your wife. You cannot betroth a woman who is already your wife.

This of course recalls Rabbi Hayyim’s famous discussion, which actually begins with his father, the Beit HaLevi. What happens if you have a beautiful etrog but there is a doubt whether it is valid—there is some defect due to which there is doubt whether it is valid—but it is beautiful in appearance, and another etrog that is definitely valid but not beautiful? So he says it is obvious that you should first take the beautiful one that is only doubtfully valid. If you take the definitely valid one first, then you have already fulfilled your obligation; what does it help to take the beautiful one afterward? You already did the commandment.

The Beit HaLevi discusses this issue of the etrog in the context of a Talmudic text in Menahot. There the Talmudic text discusses someone who brought a sin offering and afterward found a fatter one than it, and says he should bring the fatter one again. Again, this is very strange: you already brought the sin offering, you already obtained atonement—what does it mean to bring the fatter sin offering? He somehow resolves it, not important now. But apparently one sees that, contrary to the common yeshiva conception where they always mention Rabbi Hayyim, there seem to be cases where even though you have fulfilled your obligation, if you did it in a non-enhanced way, you can go back and do it again in an enhanced way—like the Ra’avad says regarding betrothal, that one who betrothed through an agent should later betroth her himself when he reaches the woman. There is even a discussion there whether to do it with a blessing or without a blessing. I think in the Ra’avad it even says with a blessing. There is a dispute among the medieval authorities about whether one recites a blessing over enhancing a commandment. According to the view that one does recite a blessing over enhancing a commandment, then he would even do it with a blessing.

What does that actually mean? It means, for our purposes, that if we go back to the issue of partial measure—if I do not have three myrtle branches, and I took the four species with two myrtle branches, and then a third myrtle branch came my way—this does not mean that what I did earlier was just some sort of symbolic gesture toward the commandment. No. It could be that that was the commandment itself, just in a non-enhanced form. And now, when I do it with three myrtle branches, I am doing it again in an enhanced form, and I could even recite a blessing—according to that conception, at least.

Okay, and that basically means for our purposes, beyond practical implications, that on the conceptual level too there can be different levels of fulfillment even in positive commandments. A non-enhanced fulfillment and an enhanced fulfillment are two different levels of enhancement. By the way, I do not know if this contradicts—I need to think about it—but I am just thinking now: people think that enhancing a commandment is voluntary, an act of pious generosity. If you want, enhance it and you’ll get reward, excellent. If you did not enhance it, nothing happened. I think enhancing a commandment is an absolute obligation. One who did not enhance it failed to fulfill a positive commandment—the positive commandment of “This is my God and I will beautify Him.” It is not counted, by the way, in the enumeration of the commandments—that is a question, I mentioned it in connection with partial measure in the first class. And therefore, even though it is an absolute obligation, I think it was not counted. And it is an absolute obligation.

Why does everyone get confused? In my opinion they get confused because they argue that enhancement certainly does not invalidate the commandment. If you did the commandment in a non-enhanced way, then certainly you fulfilled your obligation. And I say: true—so what if you fulfilled your obligation? You fulfilled the commandment, but you failed to fulfill the commandment of enhancement. Just as with tekhelet and white fringes, there are people who think tekhelet is voluntary. If you put in tekhelet, then you have a preferred form of the commandment; if not, then not. Because, after all, it says that tekhelet does not invalidate the white, in the Mishnah in Menahot. But that is nonsense, of course. Tekhelet does not invalidate the white, but it certainly invalidates tekhelet. Meaning, if you put white fringes on, you fulfilled the commandment of white fringes, but certainly you did not fulfill the commandment of tekhelet. So the fact that tekhelet does not invalidate the white does not mean tekhelet is voluntary. It means that tekhelet does not invalidate the commandment you did fulfill. But if you did not fulfill it itself, then you failed to fulfill the positive commandment of tekhelet. True, in Maimonides it is counted as one commandment, but it is one commandment with two details that do not invalidate one another.

The same applies, then, to enhancing a commandment. My claim is that enhancing a commandment is basically an absolute obligation; it just does not invalidate the commandment. That is the claim. Now if that is really so, then it makes sense to say that enhancing a commandment is indeed an independent obligation, learned from “This is my God and I will beautify Him.” It is not a detail within the commandment of sukkah or the commandment of the four species, but an independent obligation. It does not invalidate the original commandment, but it is an obligation in its own right, learned from “This is my God and I will beautify Him.”

As I said before—no, these are two different levels of fulfillment of the commandment itself. If you took a non-beautiful etrog, you fulfilled it on level A. If you took the beautiful etrog, you fulfilled it on level B. So apparently that is contradictory. But as I said in the first class, I remind you that I spoke about enhancing a commandment and partial measure, both of which are not counted even though both are obligations or Torah prohibitions. So I said that even if “This is my God and I will beautify Him” is a detail within the commandments themselves, it is not counted because it is a broad principle dealing with how commandments are fulfilled in general. It is a meta-halakhic principle. Therefore it is not counted among the 613 commandments, which are the skeleton of Jewish law itself. In that sense, enhancing a commandment can both be a detail in the commandment itself and still not be something voluntary. It does not invalidate, and it is not voluntary. Just as we know in fringes, with tekhelet and white. In tekhelet and white, it is one commandment in terms of Maimonides’s enumeration of the commandments, and nevertheless tekhelet does not invalidate the white and the white does not invalidate tekhelet. And yet, thirdly, I think one who did not put in tekhelet failed to fulfill the positive commandment of tekhelet. He fulfilled the white but failed to fulfill the positive commandment of tekhelet. And the same can apply to partial measure; the same can apply to enhancing a commandment.

And with partial measure in positive commandments, the law of partial measure and the law of enhancement meet. Because partial measure basically says: this is a non-enhanced commandment; a full measure is an enhanced commandment. Roughly speaking—I am not identifying them completely—but the idea is something like that.

Yes, one could speak, for example, about blowing the shofar for a duration shorter than required. Yes, there too it is half the action, like we saw half the action in partial measure regarding prohibitions. But here too I would say the same thing: obviously you have not fulfilled your obligation in the full way, because otherwise the required duration has no meaning. There is no difference here between prohibition and punishment as there is with prohibitions. Okay, that is it. We are talking about the duration of time of the blast, or the length of the shofar? No, the duration of time. Ah, yes, because the length of the shofar, seemingly, is not a shofar at all. There too one could discuss it, because one might say that chewing without swallowing is not eating at all. Right, one could have said that. I am saying that according to the wild extensions of the later authorities we saw, I would not be surprised if someone also said that a shofar of shorter length is a partial measure. But in principle I agree.

Okay. Up to here the introduction to the topic of partial measure—not the introduction, but the lesson on partial measure, the lessons on partial measure. Now I want to speak about what comes up at the beginning of the chapter: an oath regarding a partial measure. In light of what we have seen now, we can discuss an oath regarding a partial measure.

The Mishnah at the beginning of the chapter speaks about the Day of Atonement being forbidden in eating and drinking and washing and anointing and wearing shoes and marital relations, and so on. The Talmudic text there infers: “Forbidden? It carries karet punishment!” Maybe I’ll share this—we have already seen the Talmudic text; I will just go over it quickly. “Forbidden? It carries karet punishment! Rabbi Ila said, and some say Rabbi Yirmiyah: this was needed only for a partial measure. That works according to the one who says a partial measure is forbidden by the Torah. But according to the one who says a partial measure is permitted by the Torah…” and so on. Fine, we saw all this. Resh Lakish says it is forbidden rabbinically. That is what matters for our purposes. The conclusion of the Talmudic text, as in our Talmudic text. This is the Talmudic text at the beginning of the chapter. We saw this also in our Talmudic text: Rabbi Yohanan says that a partial measure is forbidden by the Torah, so the Talmudic text at the beginning of the chapter says it is not permitted; rather, it is simply not forbidden by the Torah but only rabbinically.

Now the Talmudic text challenges Resh Lakish from the Mishnah in tractate Oaths. It says as follows: “If so, should one not become liable for an oath-offering on it? For we learned: if one swore ‘I will not eat’ and then ate carcasses, torn animals, creeping things and swarming things, he is liable; and Rabbi Shimon exempts.” The quote is from the Mishnah in Oaths 23b, because there is a tannaitic dispute there between the Sages and Rabbi Shimon: what happens if someone swore not to eat carcasses and torn animals, and he then ate carcasses and torn animals? Is he liable or not? So the first tanna—the Sages—say he is liable, and Rabbi Shimon exempts.

“And we discussed there”: there is a parallel there, pretty much the same thing. “Why is he liable? He is already sworn from Mount Sinai.” Why does the first tanna say he is liable? He is already sworn from Mount Sinai. What does that mean? The Talmudic text assumes in a few places that things which are either Torah obligations or Torah prohibitions—we are already sworn about them from Mount Sinai. Sworn either to do them or not to do them. Therefore if I now swear not to eat pork, or to eat pork, or I swear to sit in the sukkah, or not to sit in the sukkah—whether a positive commandment or a prohibition—the oath does not take effect. Why? Because it says “to do harm or to do good,” something that is in your power such that you can do harm or do good, and you swear either to do harm or to do good. But something that the Torah itself already defines—you do not have two open options, to do harm or do good. The Torah already defines your options. So your oath does nothing. Therefore in such a case the oath does not take effect.

By the way, this is true whether you swear against the Torah or in favor of the Torah. Here we are talking about someone who swore in favor of the Torah. He swore not to eat carcasses and torn animals. Now he violated the oath and ate carcasses and torn animals. So he violated the prohibition of carcasses and torn animals. The question is whether he also violated the prohibition of an oath—whether he violated his oath. The Talmudic text says no: he is already sworn from Mount Sinai, and an oath does not take effect upon an oath. Therefore he is not liable for the sacrifice of violating an oath.

So the Talmudic text asks: then how can it be that according to the Sages, one who swore not to eat carcasses and torn animals is liable? “Liable” means liable for the sacrifice for violating an oath, of course. For the creeping thing and the swarming thing he is certainly liable. But liable for the sacrifice for violating an oath means the oath did take effect. Why? He is already sworn from Mount Sinai. So the Talmudic text there brings two explanations. The Amoraim disagree and bring two explanations. Rav and Shmuel and Rabbi Yohanan say: it is talking about a case where he included permitted things together with forbidden things. Yes, a prohibition can take effect upon a prohibition in a case of inclusion. Meaning, if I swear not to eat carcasses, not to eat meat whether from carcasses or properly slaughtered animals, then part of my oath does take effect on the properly slaughtered animals. On the carcasses it does not take effect. But since I included here things on which the oath does take effect and things on which it does not take effect, the oath takes effect through inclusion. Inclusion, addition, simultaneous application—yes, these are the three exceptions to the rule that a prohibition does not take effect upon a prohibition, and an oath does not take effect upon an oath. In this context, Rav and Shmuel and Rabbi Yohanan give that reading of the Mishnah: that he swore regarding the creeping things and swarming things by inclusion.

And Resh Lakish said: “You can find it only where he explicitly specified a partial measure, according to the Rabbis; or where he said it without specification, according to Rabbi Akiva, who says a person can forbid himself by any amount.” The reference here is to a tannaitic dispute at the beginning of the chapter there in Oaths 19, regarding what happens if someone swears not to eat. According to the Rabbis, the measure at which he violates the oath is an olive-bulk. Half an olive-bulk is perhaps a partial measure, but only from an olive-bulk does he violate the prohibition of an oath, not less. The prohibition of an oath too, like all other Torah prohibitions, has a minimum measure—an olive-bulk in eating prohibitions—unless he explicitly specifies, saying: “I swear not to eat a partial measure.” Then even if he ate a partial measure, he violated the oath. We are talking about a partial measure of bread or some permitted thing, yes? According to Rabbi Akiva, if he swore not to eat, then any amount that he ate violates the oath. In the laws of oaths there is no law of partial measure; a partial measure is a full prohibition of oath. There is, as it were, an upgraded partial measure. Meaning, there are no measures. Measures were said regarding prohibitions imposed by the Torah, not regarding prohibitions I impose on myself, as in oath prohibitions. That is Rabbi Akiva’s claim.

Let us return to our issue. Resh Lakish says: you asked how according to the Sages one who swore not to eat creeping things and swarming things can be liable? According to Rav and Shmuel and Rabbi Yohanan it is by inclusion. Resh Lakish says no. He holds that even by inclusion it does not take effect, except when he explicitly specified a partial measure according to the Rabbis—the Rabbis who disagree with Rabbi Akiva, not the Sages who disagree with Rabbi Shimon; the whole discussion is according to the Sages against Rabbi Shimon. But according to the Rabbis who disagree with Rabbi Akiva, even if he simply swore not to eat creeping things and swarming things, if he ate a partial measure—then the partial measure itself is not prohibited under the prohibition of creeping things and swarming things. Rather, only rabbinically, according to Resh Lakish. Therefore the oath takes effect on it, and that is what the Sages mean when they say he is liable. And according to Rabbi Akiva, even if he did not explicitly specify in his oath that he was swearing not to eat a partial measure, but simply swore, because according to Rabbi Akiva even one who swears generally becomes forbidden in any amount. Okay, therefore he is liable for the oath-offering. That is Resh Lakish’s claim.

Now what does the Talmudic text ask? What is the challenge? The challenge is this: according to Resh Lakish, we see that there is a rabbinic prohibition—so in our Talmudic text, right?—that there is a rabbinic prohibition of a partial measure. If there is a rabbinic prohibition, then Resh Lakish should also have accepted what Rabbi Yohanan says there in the Talmudic text: that an oath cannot take effect on a partial measure. Because even if it is only rabbinically forbidden, the oath should not be able to take effect on it. That is the Talmudic text’s assumption. The medieval authorities explain: because of “do not turn aside.” “Do not turn aside” is basically a Torah command to obey the Sages. Therefore even if something is only rabbinically forbidden, an oath cannot take effect on it because of “do not turn aside.” In any event, the Talmudic text asks here: how does Resh Lakish say there that because we are dealing with a partial measure, therefore the Sages there, against Rabbi Shimon, obligate an oath-offering? A partial measure is also not in the category of “to do harm or to do good”; there is a rabbinic prohibition, so you cannot eat it. So how can the oath prohibition take effect on it? It is difficult for Resh Lakish.

The Talmudic text says here: “And if you say that since it is permitted by the Torah, the oath-offering takes effect”—you might say: fine, it is forbidden rabbinically but not by the Torah. Something permitted by the Torah and forbidden only rabbinically—an oath can take effect on it. Then Resh Lakish says: if I explain the Mishnah in terms of a partial measure, I can explain why according to the Sages there the oath takes effect even though a partial measure is rabbinically forbidden. There is “do not turn aside,” everything is fine—but still it is a rabbinic prohibition, and on a rabbinic prohibition an oath can take effect.

The Talmudic text says that cannot be, here; it is not an answer. Why? Because we learned: “The oath concerning testimony applies only to those fit to testify.” What is an oath concerning testimony? I adjure someone who knows testimony in my favor to come testify for me. And he swears and says, “I do not know testimony for you.” Then it turns out he lied; he really did know that testimony. So he is liable for the sacrifice of an oath concerning testimony. The Talmudic text says this all applies only to someone fit to testify. If he is disqualified from testifying, then it is irrelevant that he swore he did not know the testimony. Even if he knew the testimony, he could not testify for me, so he caused me no loss. The oath concerning testimony is not only about the problem of the oath; part of it is also that he caused me a loss by not coming to testify on my behalf. But if he is disqualified from testimony, then I lost nothing; he could not have testified anyway. Therefore it applies only to those fit to testify.

And we asked there: what does this exclude? Rav Pappa said: that is obvious, yes, it is clear. Rav Pappa said: it excludes a king. Rav Aha bar Yaakov said: it excludes a dice-player. What matters to me is Rav Aha bar Yaakov. The Talmudic text asks: “And is a dice-player unfit by Torah law? By Torah law he is fit; it is only the Rabbis who disqualified him. And yet the oath does not take effect on him?” What do we see? That a dice-player, even though he is disqualified from testimony only rabbinically, if a person swears, he is not liable for the sacrifice of an oath concerning testimony. We see that an oath does not take effect even in relation to a rabbinic problem.

Now the medieval authorities already note here that there is a logical leap, because here it is not a matter of “an oath does not take effect on a prohibition”; this is not “one prohibition does not take effect upon another prohibition.” Here, if he is rabbinically disqualified from testifying, then the oath is irrelevant to him because he cannot testify. In our case we are speaking about something forbidden to me, and I am already sworn upon it from Mount Sinai. True, it is only rabbinically forbidden, but I am still bound. Does the oath take effect on that? It is not the same discussion. The Talmudic text for now assumes that it is the same discussion. There we see that the oath concerning testimony does not apply even to one disqualified rabbinically. From this the Talmudic text concludes that also an oath of utterance, like in our case, does not take effect on things forbidden rabbinically. If so, the challenge against Resh Lakish returns: if a partial measure is forbidden rabbinically, then how can the Sages say one is liable for an oath-offering regarding a partial measure?

The Talmudic text here rejects that and says—and this is the end of the sugya: “It is different there, because the verse says: ‘if he does not tell,’ and this one is not fit for telling at all.” What does that mean? Basically, an oath concerning testimony is about someone who can come and testify for me, and I adjure him and he lies, swearing that he does not know the testimony. The Talmudic text says: what do I care if he is disqualified only rabbinically? Practically speaking, could he have come and testified for me? Could I have benefited from him? No. What difference does it make that he is only rabbinically disqualified? We still do not expect him to come testify for me by Torah law and then not testify by rabbinic law. If he is rabbinically disqualified, he is not supposed to come testify. If he is not supposed to come testify, then he caused me no loss. Therefore there, in the sacrifice for the oath concerning testimony, even a rabbinic disqualification makes it an irrelevant oath.

By contrast, with an oath of utterance, if there is a rabbinic prohibition, the oath of utterance turns it into a Torah prohibition. It takes effect on it—you could even say by addition. Therefore there is an oath here, and thus one is liable. That is the answer according to Resh Lakish.

This is somewhat similar to—you know—someone who causes another person to stumble in a rabbinic prohibition. Does he violate the Torah prohibition of “do not place a stumbling block” ? True, I have seen differing opinions on this, but it seems obvious to me that he does. Obviously he does. Why? Someone who causes his fellow to fall into a pit in the public domain violates “do not place a stumbling block,” right? What prohibition do I have here regarding a pit in the public domain? A rabbinic prohibition? A Torah prohibition? What prohibition? There is no prohibition at all. So what is the issue? You caused him harm, you did something bad to him—factually, not legally. And that is “do not place a stumbling block.” Well then, if you caused him to violate a rabbinic prohibition, that is worse than falling into a pit. You caused something wrong to happen to him, something not good, so you violated the Torah prohibition of “do not place a stumbling block.” What difference does it make that the prohibition was rabbinic?

Sometimes the Torah prohibition depends on reality. I do not care whether what established that reality was rabbinic law or Torah law. At the end of the day there is a factual result here, and the Torah prohibition relates to the reality, not to the legal classification. Therefore I do not care that in reality the prohibition there is rabbinic. As long as that is the reality, the Torah prohibition exists. And therefore, with the sacrifice for an oath concerning testimony, if you cannot testify, I do not care if the barrier preventing you from testifying is rabbinic. Practically speaking, you were not supposed to come testify for me. So what loss did I suffer from your swearing falsely to me? None. Therefore there is no sacrifice for an oath concerning testimony.

But what does that have to do with an oath of utterance? In an oath of utterance, when you are in fact forbidden to eat this rabbinically, if you swore about it, then you added a Torah prohibition to it. And one prohibition can take effect upon another—at least a more severe prohibition can take effect upon a lighter one. Therefore the Talmudic text says that Resh Lakish is not difficult, because he would answer that indeed there is a rabbinic prohibition in a partial measure, but on a rabbinic prohibition, at least according to the Sages against Rabbi Shimon, an oath can take effect, because it is only a rabbinic prohibition and not a Torah prohibition.

What would Rabbi Yohanan say to that? Rabbi Yohanan first of all assumes what? That on a partial measure an oath does not take effect, right? Because it is a Torah prohibition. Therefore he challenges Resh Lakish. How would he explain that there the oath does not take effect? It follows that he himself certainly holds that the oath does not take effect, right? Because it is a Torah prohibition. What does he hold regarding a rabbinic prohibition? Regarding a rabbinic prohibition, it is unclear. Because true, Resh Lakish argues that an oath does take effect on a rabbinic prohibition. But when Rabbi Yohanan attacked him, it could be that he knew it was a rabbinic prohibition and still did not agree to accept this, because an oath does not take effect on a rabbinic prohibition either, as we saw regarding the oath concerning testimony. He does not accept the distinction between an oath concerning testimony and an oath of utterance. Therefore according to Rabbi Yohanan, even on a rabbinic prohibition an oath does not take effect. Only Resh Lakish, because of the challenge against him from the law of partial measure, is forced to squeeze himself into saying that an oath does take effect on rabbinic prohibitions. But the Talmudic text does not say that Rabbi Yohanan accepts this. Rabbi Yohanan assumed otherwise, and there is nothing forcing him to retreat from that. Resh Lakish has no choice; he has to explain it somehow. But Rabbi Yohanan has no such pressure.

So if I summarize—and here I am stopping the class—according to Resh Lakish, an oath does not take effect on a Torah prohibition. According to Rabbi Yohanan, an oath does not take effect on a Torah prohibition. Apparently an oath also does not take effect on a partial measure, which is a Torah prohibition without punishment and without a warning. As for a rabbinic prohibition, that remains open. In the straightforward reading, I think that according to Rabbi Yohanan an oath also does not take effect on rabbinic prohibitions, because that is how he attacks Resh Lakish. But after Resh Lakish answered that rabbinic law is different, maybe Rabbi Yohanan would accept it—I do not know—and would agree that regarding a rabbinic prohibition, an oath does take effect. So that is a point left open.

From here on we will continue in the next class. Look at the parallel Talmudic text in tractate Oaths 23. You will see that there the picture is the opposite. And also on 21b. In both those places the give-and-take between Rabbi Yohanan and Resh Lakish appears, and there one sees the opposite picture. Also look in Maimonides and the Shulhan Arukh; I’ll already write it for you in the file for next time. Next time is actually tomorrow. Okay, we’ll stop here. Does anyone want to comment, ask? Okay then, see you.