Halakha and Jewish Law 2

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

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[Rabbi Michael Abraham] I’m claiming more than that. Meaning, humiliating someone is like theft. The result is that for humiliation you pay, but it starts earlier; it’s not only because the punishment is monetary. The punishment is monetary because at root there’s actually something here that’s like theft. Humiliation is like theft. And this connects to the concept… bodily injury is a bit more than that, but you can… yes. Just like with theft, a person can waive it, though if you’re compensating or something, there are people… halakhic decisors say it’s forbidden to do that. A person… I’m not talking about the level of severity. I’m talking about the idea. The level of severity is certainly different; even murder, from my perspective, is like theft. In terms of the logic, not because it isn’t more severe. It is more severe, but its logic is like theft.

Now I’ll explain. This is what I spoke about last time: I made a distinction between two kinds of obligations in Jewish law. There are obligations whose basis is a command of the Holy One, blessed be He, or of the Torah, which places an obligation on me toward someone or toward whoever it may be; and there are obligations whose basis is the other person’s rights against me. I spoke about Hohfeld’s table among jurists, who say that every right of the other person essentially creates an obligation for me, and every obligation of mine is essentially based on the other person’s right against me. Let’s say I borrowed money from someone. So he has a right to receive repayment from me, to get the money back. Consequently, I have an obligation to repay. My obligation and his right are two sides of the same coin. That’s what is accepted in the legal world. But in the halakhic world there are two kinds of obligations. One of them really is obligations based on the rights of the other, but the second is obligations that are not connected to the rights of the other.

And what I basically said is that maybe I’ll just bring the example I gave from Rabbi Yechezkel Abramsky; that’s more or less where I ended. The example about interest: that fellow in London who borrowed money and paid interest, and then sued the lender to return the interest. Fixed interest is collectible through the courts. And the religious court exempted the lender, or at least did not compel him, because it is proper to return all interest, but fixed interest the judges compel one to return. So the judges there said: this is not fixed interest; we are not intervening. So he said to them, “Give me the basis on which you judged me,” meaning, give me the reasons—usually that’s so you can appeal. They were unwilling to give him reasons. So he went to Rabbi Yechezkel Abramsky, who was the rabbi of London, and said to him: first, they didn’t give me the money; second, they won’t even give me reasons, so I can’t even appeal.

So he also told him that they were right, and basically brushed him off. He explained that when you come to claim fixed interest, even if it had been fixed interest—the religious court ruled that it was not fixed interest, but even if it had been fixed interest—you are not really the claimant here. You do not have a right to receive that interest. Rather, he has an obligation to give you that interest. In other words, you… you are not standing here as a litigant; they didn’t judge you. Consequently, you also were not entitled to receive reasons. Reasons are given to a litigant when he asks for reasons: explain to me why you judged me this way, so I can… I have a right to ask for reasons. But if they didn’t judge you, then what… who are you? At most, you are a witness. I’m saying it in an extreme form: you are basically a witness here. You are only testifying that the other person took fixed interest, and consequently now the religious court will compel him to return the interest. True, when he returns the interest he returns it to the borrower; he doesn’t return it to someone else. But it’s like fines. As I mentioned this example before, fines work that way too. Fines are, in the simple sense, a sanction, not compensation—monetary fines—and still they go to the injured party. Meaning, in the end, even after I impose the penalty, it makes sense that if he is already paying money, and he harmed someone, he should give it to the person he harmed. So that’s obvious. But not because the injured party is claiming this money. Meaning, it’s not that he can now be the litigant here and has a right to receive the money. He has no right. The other person has an obligation to give the money, and the religious court compels it from the standpoint of compelling commandment observance—not because the court is enforcing the claimant’s rights, but because the court is forcing the defendant to behave according to Jewish law. Religious courts compel observance of commandments.

Suppose in the case of fourfold and fivefold payment—can you sue? You can’t sue for anything. Fourfold and fivefold is a penalty. Right. But what does it mean, can he sue? Can the robbed party sue him for it? He doesn’t sue. He comes to the religious court and says, “Gentlemen, that person robbed me.” Now the religious court will punish him with fourfold and fivefold; that is not a claim in the sense of “this is owed to me.” Today, in our time, is there fourfold and fivefold payment? If it were something owed to me, then even today I could claim it. But here it’s a fine. That fine doesn’t exist as long as the religious court hasn’t imposed it. At least according to the accepted understanding. I mentioned Rabbi Akiva Eiger in tractate Makkot on page 5, I think I mentioned him, and he talks there about how fines—and in general punishment by a religious court—do not exist until the court imposes them. Unlike a monetary debt, which of course exists even without a court establishing it. The court only determines that such a debt indeed exists, meaning it reveals the fact that such a debt exists, and compels payment.

Okay. So this distinction between obligations that come by force of rights and obligations whose basis is not rights—that is the distinction between Choshen Mishpat and the rest of Jewish law. In Choshen Mishpat, it is the collection of obligations whose basis is the rights of the other person. When the other person claims something that is due to him, he has a right against me, then of course the religious court will require me to give him what I have to give in order to realize his rights. There he is the claimant. In contrast, with obligations whose basis is not rights, I may indeed have to give him something, but he cannot claim it from me.

And I gave—just a second—I gave examples of laws that appear in Yoreh De’ah. I already gave interest earlier, and charity, for example. In both of those cases, this is a monetary interpersonal obligation that by a simple definition should seemingly have belonged in Choshen Mishpat. And nevertheless the Tur places it in Yoreh De’ah, because the poor person cannot sue me in religious court and say, “Please give me the charity owed to me.” Charity is not owed to you. I have an obligation to give you charity; you have no right to receive charity from me. So you cannot sue me. True, if you come to the religious court, the court will force me to give, because they compel charity. That’s something else, but that is compelling observance of commandments. Therefore it appears in Yoreh De’ah, because it is an obligation whose basis is not the right of the other person. And the same with interest.

One of the indications—actually someone sent me an email yesterday, I don’t know the names, but someone sent me an email yesterday following the previous class, not important around which law in the Shulchan Arukh, from which it seemed—so he thought—that the borrower has standing in religious court to sue for the interest. I didn’t see that there, but exactly two laws later there are—well, I’ll bring it now, simply because they are two proofs in favor of what I said.

One law I already mentioned, which says that the religious court does not seize property, unlike regular debts. If someone owes me money because he borrowed from me, then the religious court goes down to his assets if he doesn’t pay me, since there is not merely a commandment on him to pay me; I have a right to receive from him. So if he doesn’t fulfill his obligation, then the religious court itself will give me my rights. He may perhaps not be fulfilling “repayment of a debt is a commandment,” since the court did it against his will, but my right to receive the money is not because “repayment of a debt is a commandment”; my right to receive the money is because it is my money. Okay? Therefore the religious court seizes assets.

With interest, the Shulchan Arukh writes that the religious court does not seize assets. There is a bit of dispute about this among the medieval authorities, but even among those medieval authorities who say yes, then Nachmanides says: only when you compel him bodily do you compel him monetarily. Meaning, still the idea is compulsion regarding commandments; only I compel observance through seizure of assets. But it’s not seizure of assets in the sense that this really belongs to me and I have a right to receive it.

Where do you see this? That very next law in section 161 of Yoreh De’ah. In the very next law in the Shulchan Arukh it says that if the person dies, the interest is not collected from the heirs. Now if he borrowed money from me and owes me money and he died, then certainly they will take it from the estate. I mean from the estate, not from the heirs’ own money—but from the estate they certainly take the money. What do you mean? He owes me the money, and it is my money. He cannot bequeath it to his heirs. Okay? In contrast, with interest, if he dies, that’s the end of it. Why? Because interest—the return of interest—is an obligation imposed on him. If he didn’t do it, the religious court would compel him in the case of fixed interest. But if he dies, that’s it. After all, it’s not really my money. He only has an obligation to give it to me. If he dies, it ends; there is no longer an obligation. It is not an obligation that passes to the heirs, because it is not my right. The father’s obligations do not pass to the heirs. A strong indication of this point—that interest really belongs to Yoreh De’ah and not Choshen Mishpat.

Yes.

So to sharpen it—if I understand what you’re saying—all the subjects of Choshen Mishpat, which are basically conduct, law, and order, there’s no need specifically to sue in a rabbinical court. So I can go anywhere, to the secular courts, Sinai, wherever is best.

I’ll talk about that—there is an issue. In just a moment I’ll clarify it a bit more as we continue the class; I’ll speak about it, okay? I’ll come back to it. There’s a good point here.

In the very body of Choshen Mishpat, section 26, it tells you this—from Choshen Mishpat itself.

Yes, no, obviously. Jewish law certainly says so. The difficulty is why.

Yes. Hod, I heard the Tur. Okay. That Tur says explicitly that you need a claimant. Now without a claimant, the religious court does not compel. So according to that, there is indeed standing for the claimant. Meaning, it could be that what the rabbi says is correct in principle, but that there is explicit standing for the claimant.

No, what do you mean by standing for the claimant? Standing for the claimant—even if you want there to be a claimant here, that only means you want there to be some trigger for the religious court to compel. But it does not mean that this claimant is entitled to the money. Because if the borrower dies, the heirs will not give it to the claimant. If it were his money, they would give it to him.

But he also says later on, when he discussed it in section 9—section 9 is the laws of judges, and that’s in Choshen Mishpat, yes in Choshen Mishpat—so it could be that even if there is a creditor, the creditor of the borrower, yes, to whom the interest is due, he also has a claim that it should be returned to him. He says that he has to initiate it; if he didn’t initiate it, then nothing happens. But it also sounds as if, true, there is no lien on property, that’s true, but apparently this mechanism still gives him some sort of standing.

Fine, so I’m saying: you need him as a trigger in order to compel, but that doesn’t turn it into his right. And it still belongs in Yoreh De’ah. He has no right. If it were his right, then the heirs would also have to pay.

No, I would say—with charity, don’t you need a trigger?

What?

They compel charity—why don’t you need the poor person to be the trigger?

Come on, charity is something different from interest. What’s the connection? Interest arises from some kind of wrong—a wrong that is not an infringement of a right, doesn’t matter, but you harmed someone—so you want that someone to come and ask the religious court for help. With charity you don’t need a request; if you see that someone needs it, then you give it to him. Fine, one can understand that logic.

But if this is really compelling observance of commandments, then compelling observance of commandments should apply also to interest even without anyone’s claim. In general, just a question: why is non-fixed interest not collectible by the courts? After all, they compel observance of commandments in all commandments.

Non-fixed interest is rabbinic.

They compel rabbinic commandments too, no? What—don’t they compel rabbinic commandments?

There are rules in the laws of interest about why they compel in some cases and not in others; that needs separate discussion.

In any case, this concept of rights and obligations is what defines the difference between Choshen Mishpat and the rest of Jewish law. Choshen Mishpat is the collection of obligations imposed on me by virtue of the rights of the other person. That simply is what defines Choshen Mishpat, unlike monetary obligations that appear in Yoreh De’ah, where those are pure obligations, not obligations grounded in rights.

I want a bit… yes.

There is one point. There is an approach—it’s not certain that it is necessary—but there is an approach that in torts the obligation does not stem from the other person’s right. That’s what Tosafot says there in tractate Bava Kamma: without the Torah, since it is something written in the Torah, in torts without that we would not have been obligated.

Exactly. According to the Torah’s approach we would be obligated, but maybe even more strongly than that: indirect causation in torts is exempt. If this were a matter of the other person’s rights against me, why is indirect causation in torts exempt? After all, in the end I caused damage, and now he has a right.

First of all, regarding indirect causation too, there is the Meiri in Bava Kamma there and the Ba’al HaHashlama, who say that it is a real obligation, only it is not collectible by the courts; but it is a real obligation. Meaning, one who did not pay it is a wicked person from whom it may be collected. So it is really…

But monetarily against you? If the rabbi sees rights of…

But I think it’s not “monetarily against you.” If damage happened to your property, why is that my fault? The fact that you suffered damage is clear. The only question is what my responsibility is. And what the Talmud says—or the Torah says, or the Talmud, it doesn’t matter—is that if I caused it indirectly, then I do not bear responsibility. That does not mean that your property was not damaged. It only means that you can’t come to me with claims, because I didn’t do it—rather something, somehow, I did it through something else.

But this whole concept of “I didn’t do it, rather something else did it” is very hard to understand if this is the language of obligations and rights, because I certainly caused it. What do you mean, I caused it?

But your right against me is created only where I damaged your property. In indirect causation, I did not damage your property.

Right, but if we take human logic, yes, human logic says that responsibility also…

Now why is that logical? So seemingly there is a possible explanation—and it doesn’t have to be the only explanation—that the entire obligation for damage is from the outset a punishment imposed on the damager. And as a punishment of the damager, now it makes sense to discuss whether indirect causation is liable or exempt.

This formulation takes me back to that Tosafot I mentioned earlier, where Tosafot says that torts are basically a debt written in the Torah. Meaning, if it had not been written in the Torah, a person would not have been liable. So this too basically goes in that direction. But it seems to me that it makes no difference, because in the end, even according to Tosafot—and that Tosafot is difficult—but even according to Tosafot, what is written here is that the Torah created your right against me. It is not a right that arises by itself; rather, the Torah created it. But when the Torah did this, it added a clause to Choshen Mishpat. Meaning, these are not just obligations. After all, the question is what the Torah created, not whether the Torah created. The Torah created it, but what did it create? Did it create an obligation on me, or did it create your right from which my obligation is born? That’s the question.

One can say it created an obligation on me. I’m saying: everything can be explained, it can all fit, but the picture one sees from the placement of Choshen Mishpat and Yoreh De’ah shows that this is not so. It certainly can be made to fit, but what I’m saying is not necessary. I’m offering an explanation for this category that says Choshen Mishpat is grounded in rights.

And that’s it. And even in torts, Tosafot does not dispute that there is a difference between torts and interest—namely, in torts you can sue, and in interest or charity you cannot sue. So that means Tosafot also accepts that, even though this is a debt written in the Torah, even though the Torah established it, still the Torah established that the other person has a right against you. That is what it established; that is the content of the ruling. So it doesn’t matter that it comes from the Torah. There are rights that arise from the very fact that you own property, and there are rights that arise because the Torah gave you that right. And there are those who argue that all rights are of that second type—that the Torah gave you all those rights. I’ll speak about that in a moment, okay? But I’m interested in the bottom line, not where the source of the right is, but how the halakhic definition of the matter is structured. Is it your right or my obligation? It doesn’t matter right now whether the Torah established it or whether it is somehow natural law.

So what you’re saying is that the Torah established it, and then what we said at the beginning—that it depends on the legal practice of each place?

Here I’m coming to that point, certainly not. Here I’m coming to that point that indeed, that’s why I said there are those who say everything works that way and those who don’t. Meaning—and I mentioned Rabbi Shimon Shkop at the beginning of the first class, I think—and I spoke about the fact that Rabbi Shimon Shkop founded this concept called “the jurisprudence of the laws.” He begins with the question—I spoke about it then in the whole context—he begins there with the question of the Maharai Basan: how can it be that in cases of monetary doubt we are lenient? Right? If I claim money from someone and I brought no proof, then “the burden of proof is on the one who seeks to extract from another.” In the language of the commentators, medieval and later authorities, they call this “in monetary doubt, we are lenient.” Lenient toward the defendant, of course, because leniency for one is stringency for the other. But when they say lenient, they mean lenient for the defendant.

So the Maharai Basan asks: how can that be? There is here a possible prohibition of theft. And in a doubt concerning a prohibition, we should be stringent—a Torah prohibition. How can that be? He brings several answers there, the Tumim and others. But in the end he arrives at this conclusion; his entire Gate Five is basically devoted to this issue from different angles. And he says that in the monetary obligation—the halakhic obligation on me to give money to someone else—its basis is actually some legal condition that precedes the Torah’s command. Meaning, let’s say the Torah said “do not steal.” When it said “do not steal,” it presupposed a system of ownership and acquisition laws. Because otherwise, if there is no definition of who owns what, how could I be considered a thief? What is the definition? In order for me to be considered a thief, we have to define who owns what. Where does that definition come from? Where is it written?

I mentioned, yes, that in most places there are no verses. Meaning, these definitions are almost all—there are a few here and there—but most of them are rabbinic definitions, definitions that do not emerge from verses; they are not written in the Torah. Rabbi Shimon Shkop wants to argue that this is essentially so. It’s not accidental. Essentially, the legal layer that determines who owns what is a layer that precedes the Torah’s command; it exists beforehand. It is basically the establishment of a social-legal norm. Society determines some norm: how one buys, how one sells, who owns. When society recognizes you as the owner of something, then if I take it without permission I am a thief. But before defining me as a thief, we have to determine that you are the owner. And the determination that you are the owner is a determination made by society. And that is how I explained that indeed, where society is not willing, then “that which the court declares ownerless is ownerless,” and all sorts of things like that. That stemmed from this issue.

Now if one really sees it this way, then it comes out that your right to the property is a right that does not stem from a Torah command, but from a social-legal agreement that this property belongs to you, and the Torah gives that halakhic, religious backing—however you want to call it—in the form of the prohibition “do not steal.” Meaning, once you have property and I took that property from you, then not only am I a legal criminal, I am also a religious offender because I violated “do not steal.” But the fundamental definition is a legal definition, not a Torah definition. The public decides what counts as whose property.

By the way, as I said there, there are those who want to claim regarding Rabbi Shimon Shkop that the entire prohibition is only the religious prohibition; on the legal plane there is only the definition of who owns what, but there still would not have been any prohibition against taking property that is not mine until the negative commandment “do not steal” arrived. And it is clear in Rabbi Shimon Shkop that this is not true; there are several proofs to that effect. Rabbi Shimon Shkop speaks of a prohibition against taking from the other person even without “do not steal”—for example regarding the robbery of a non-Jew. He says that according to the view that robbing a non-Jew is not a Torah prohibition, it is still forbidden to take; it is forbidden on the legal level to take. So that means it is not merely a determination, so to speak, of a legal fact—namely, whether it is yours or not yours—but there is also a prohibition on the legal level. The Torah adds a second story on top of that: also a religious prohibition—there is “do not steal.”

So in matters of acquisition, symbolic transfer, exchange, and so on—not necessarily.

Right, situmta. The issue of situmta. In situmta it says that if a certain mode of acquisition is accepted in society, then it is valid, and according to most views that is Torah-level. Yes.

I know this idea of Rabbi Shimon Shkop—what is he basically saying? He says that if legally we decided that if you have no proof you cannot extract it from me, then we decide to leave the money with the current holder.

No, I still haven’t gotten to what Rabbi Shimon Shkop does with this. For now I’m only asking whether the chair belongs to you or not. What determines that is custom, what the state established, okay, society, the state—it doesn’t matter—and Jewish law recognizes that de facto and says there is a prohibition of “do not steal” against infringing that proprietary right as well.

But how—wait—now how do we get past the issue that this is a Torah prohibition, and in a Torah doubt we should be stringent?

Wait, now I’m getting to it. That’s what Rabbi Shimon Shkop said. So how does he resolve his question? He started from the question: why in monetary doubt are we lenient? So he says that the doubt concerning the monetary prohibition does not stand on its own legs; it stands on the legal legs. And in order for there to be a doubt concerning the prohibition of “do not steal,” there first has to be legal doubt regarding ownership of the property. Now once there is a law of presumption or possession—meaning the one holding the item is presumed to be the owner—and that is a legal rule. And the Talmud itself says: “one who is in pain goes to the physician,” meaning it gives a rationale regarding “the burden of proof is on the one who seeks to extract from another.” So if that is a legal rule, then it means that on the legal level this property belongs to the possessor as long as no proof has been brought. Once this is legally determined, there is no longer any doubt on the halakhic level, because a doubt on the halakhic level begins from a doubt on the legal level.

Therefore he says there is no reason to discuss “in a doubtful prohibition we are stringent” regarding “do not steal” if the legal level has resolved it with legal rules. And “the burden of proof is on the one who seeks to extract from another” is a legal rule saying that even if I have brought no proof, if the property is in your possession, the legal presumption is that it is yours. I’m not entering now into the nature of that determination—whether it is proof, a legal convention, that is another whole topic—but that is the legal determination. Nearly every legal system in the world recognizes this, I think. It’s not some innovation of the Torah; it’s plain human reasoning shared by many people. Since that is the case, right now it is yours. If it is yours, then the prohibition of “do not steal” does not arise at all, even though on the theoretical level maybe you really are lying and it is not yours. But since legally we have determined that the legal world recognizes it as yours, consequently the prohibition of “do not steal” does not arise here, and therefore in a doubtful case we are lenient.

What? You’re not going to say that he is not a thief, right?

What do you mean not a thief? He still violates the prohibition of “do not steal.”

Who is this—if he really stole, then yes, the defendant, yes. If he really stole, but because he now has possession I can’t sue him, right? So we’re saying here that there is basically no prohibition of “do not steal” because there is no doubt about “do not steal” at all.

What the Holy One, blessed be He, will do—I don’t know what the Holy One, blessed be He, will do to him. That’s a different discussion. But the question is: in a religious court, if there is a prohibition here, should they, because of a doubtful prohibition, compel him and so on? By the way, just incidentally, this question is problematic because in most cases what do you mean “doubtful prohibition”? I know whether I stole or not. You’re telling me I’m in doubt? You are in doubt—you, the judge. I’m telling you I didn’t steal. So because you don’t know, you want me to be stringent with laws of doubt because you are in doubt? That doesn’t even get started because of that. This question exists, of course, only in one case: where one side says certainly and the other side says maybe. We rule in Jewish law that “certainly versus maybe” is not automatically better if there is a current possessor. In a case of “certainly” and “maybe,” where the possessor is the one saying “maybe,” he really does not know whether it is his or not; he is claiming uncertainty. Here there would be room to say: wait, you have a doubt, a possible prohibition of theft—you should be stringent. And to that we say: fine, but if legally we require proof from the claimant, then we presume you to be the owner, and that’s it.

So now if we return to the question of your own prohibition, the issue drops away, because the person doesn’t know, so he asks us: okay, what should I do? He himself asks what he should do, and we tell him: fine, he need not… very good. If there is no proof and you do not know, then this money is yours, and therefore even from your own standpoint the presumption is that you did not violate a prohibition.

If, instead, the legal system determining ownership were itself Torah-based rather than a legal system prior to the prohibition of theft, then would the same argument—that on the legal level there is ownership and therefore no doubt—mean that the entire rule of “in a Torah doubt we are stringent” has no significance? I don’t understand why the argument you raised changes the order of priority.

No, he says that the order of priority is that way too, but all within the Torah.

But someone who makes such a claim says he doesn’t understand why Rabbi Shimon Shkop needs to arrive at this innovation. He says basically something like this.

I think what drives Rabbi Shimon Shkop is that if everything really were Torah-based, then it is not clear why the Torah established this at all. Meaning, if “in a doubtful prohibition we are stringent” is the Torah’s rule, then why on earth regarding theft would the Torah not say the same? And notice, this emerges from reasoning in the Talmud.

Yes, but how does the claim that this comes from law solve the question? Fine, there is law, and in law there is no rule of “in a doubtful prohibition we are stringent.” I’m a judge; someone comes before me with a theft claim. It’s clear that when there are two sides there is doubt. After all, to begin with there is such a thing as truth…

No, there is no doubt. I am in possession, and the legal rule says that without proof you cannot even generate doubt.

And Rabbi Shkop added that this preceded the Torah’s legal system—yes, I want to add in response to him—that the legal dimension preceded the Torah’s legal system.

Of course. That’s what we’ve been talking about all along. He argues that this can also be prior even within Torah law: that the proprietary determination precedes the prohibition of “do not steal,” but all still within the Torah.

I understand. But what Rabbi Shimon gains by saying it is not within the Torah is the very body of the question of “in a doubtful prohibition we are stringent”—there is no need to explain why I deal with this question before that question.

No, that’s clear. He isn’t asking why one is handled before the other. He’s asking why we don’t apply stringency in doubt here too, even on the legal plane. What difference does it make that there is a legal plane? There too, if there is doubt—after all there really is doubt—then why there are we not stringent? So the answer is: yes, but since this is a legal layer and not a halakhic rule, then “in a doubtful prohibition we are stringent” does not apply here. And that is the point. I think that is also the reason Rabbi Shimon doesn’t go like Rabbi Shlomo Fischer, because he wants this to be outside the Torah. Because if it were inside the Torah, then even if you distinguish between these two things, still why should the doubt be treated leniently? Sorry—stringently. That’s what troubles him.

Yes.

And regarding “he incurs the greater penalty,” if we go according to the view that the lesser punishment is absorbed into the greater punishment, then I move aside and say, “Gentlemen, what about his money?” What happened to his rights?

No, there you are right. There are difficult problems with “he incurs the greater penalty” in monetary matters. There is a responsum of the Chelkat Yoav, part 2, section 40 I think, which deals somewhat with this issue, because there is a punitive dimension in damage payments. You see this clearly. You see it in several places. Even though damage payments are seemingly grounded in the right of the other person, I think it is somewhat connected to what Rabbi Steinberg asked earlier regarding indirect causation. Apparently there is some condition. Meaning, for me to be liable, it is not enough that there be your right; I also need to deserve some punishment. For example, a damager under compulsion is exempt. Why exempt? In the end I damaged your property. I’m not talking now about a person who directly causes damage, say, but property that causes damage. In the end I damaged your property, so why am I exempt? Because there has to be some element of fault on my part to obligate me. It’s not enough that it be your right. In that sense torts really are a bit different, and maybe that is why Tosafot that I mentioned earlier says this is a “good measure” of the Torah.

But here he damaged intentionally.

What?

I didn’t understand. In the case of “he incurs the greater penalty,” he is not…

No, of course. But he doesn’t deserve punishment because he already took the punishment. So now we no longer have an obligation to punish him, and there also has to join…

To explain “he incurs the greater penalty” is a whole topic in itself, but assuming I accept what you say, that the smaller punishment is absorbed into the larger one—whatever the explanation may be—then in the end he is no longer liable to punishment for the monetary aspect. Once he is no longer liable to punishment for the money, it is not enough that the other person has a right. The other person has a right, but he also needs to be able to demand it from me. The fact that he was damaged—so what? Why am I liable? Because I am at fault, because I deserve some punishment or something like that. In indirect causation I am not at fault; in compulsion I am not at fault; and in “he incurs the greater penalty” I am at fault, but I already paid my debt to society, so once again I cannot be sued.

It also seems to me that the Talmud says regarding someone being executed, and in “he incurs the greater penalty,” that there is an issue of the heirs paying his debts.

Fine, heavenly matters are something else. It’s the same even in indirect causation. In indirect causation, he is certainly obligated to pay in the heavenly sense. I mentioned the Meiri and the Ba’al HaHashlama earlier, who say he is considered a thief if he does not pay. Not only is there a heavenly obligation to pay; according to the Meiri and the Ba’al HaHashlama it is an actual monetary obligation.

Anyway, we were with Rabbi Shimon Shkop. So Rabbi Shimon Shkop essentially defines the monetary issue as something prior to the halakhic obligation of “do not steal.” Maybe through this one can understand—I think I mentioned Rashi—Rashi in Bava Kamma on page 60 regarding “a person may not save himself with another person’s property.” King David asked the Sanhedrin there, “May I save myself with another person’s property?” They said to him, “You are a king, and a king may break through a fence to make a way for himself,” meaning you have permission because you are a king. From here we see that someone who is not a king may not do this. And the question is why? What, should he be killed rather than violate theft? If someone who is not a king is in mortal danger and now needs to use someone else’s property—to steal or damage someone else’s property in order to save himself, a matter of saving life—and the Talmud says, “A person may not save himself with another person’s property.” Seemingly this means he must be killed rather than violate theft. Now what is this? There are three grave sins; where did a fourth one come from?

Now true, most of the medieval authorities disagree with Rashi. Tosafot there disagrees with Rashi, and Rashba, everyone disagrees with Rashi. What do they say? They say that what the Talmud means is that it is permitted, but he has to pay. When they say “a person may not save himself with another person’s property,” according to the simple meaning of the Talmud—well, the simple meaning sounds like “a person may not save himself with another person’s property”—they understand it to mean that if he did save himself, he must pay. The dispute is whether he must pay or not. By the way, here there is a conceptual price in the opposite direction. Because according to the view that a person may save himself with another person’s property, that means he doesn’t even have to pay. And that is a difficult argument. Meaning, all in all you saved yourself, fine, you took his property, everything is fine—but not pay him? Why? Meaning, there is a conceptual price to both directions.

In any event, that is Rashi’s view. All the medieval authorities disagree with him. But there are different formulations among the medieval authorities, and several of them, in my opinion, do in principle join Rashi at the conceptual level. For example, a responsum of Rashba. Rashba says that “a person may not save himself with another person’s property” is because the owner of the property is himself obligated to save me—“do not stand idly by your neighbor’s blood.” Since that is so, I am already taking his property, because in any case he would have had to give the property to save me under “do not stand idly by your neighbor’s blood.” Therefore I am already taking the property. And this Rashba is not simple at all. Because if I return to Yoreh De’ah and Choshen Mishpat, then “do not stand idly by your neighbor’s blood” belongs to Yoreh De’ah. He is not liable to me in the sense that I can sue him. He is a wrongdoer if he doesn’t do it, he is wicked if he doesn’t do it, but I have no right of action; he does not owe me that money on the legal plane. He has an obligation not to stand idly by my blood, meaning to save me. So how does such a thing create an obligation that allows me now to take the money myself? If someone owes me charity, can I take the money by myself? He has to give charity, yes? Can I take the money myself?

Maybe that is possible, because there in Sanhedrin 73—why is there both returning a lost item and “do not stand idly by your neighbor’s blood”? What, is it doubled? The Talmud says: here it is for free, and here it is for payment. If there were only one, you would say he must do it for free; the second teaches that even for payment. So that turns it into an actual monetary obligation, a real obligation.

Well, I don’t know if “do not stand idly by your neighbor’s blood” really turns into Choshen Mishpat. I doubt whether Rashba means to say that. I don’t know; I doubt it. But that is what he says. In any event, that is what Rashba says. And if so, then notice: Rashba is basically claiming that if there were no obligation on you to save me, he too would agree with Rashi that I am forbidden to take the money. Why? At most I violate the prohibition of “do not steal.” Does “do not steal” not get pushed aside by saving life? What difference does it make whether he is obligated to me or not? Meaning, Rashba is looking for grounds to permit taking the money so that there won’t be a prohibition of “do not steal.” Because if there is one, he too agrees that this is not pushed aside by saving life. Meaning, Rashba too joins in.

The Tur brings Tosafot and the Rosh, who also disagree with Rashi. And the Tur says it is permitted to take on condition of paying. Several later authorities explain that if he takes not on condition of paying, then Tosafot and the Rosh also say it is forbidden. If you know you have no money and never will have any, and you will not be able to pay, they say: be killed rather than transgress—even Tosafot and the Rosh. I am not sure this is necessary in their language, but there are several later authorities who understand the Tur this way. When the Tur says it is permitted to take on condition of paying, that means fine, for the sake of paying, because that is not called taking. But if you are really taking, then it is the prohibition of “do not steal.” Well then, what? Does the prohibition of “do not steal” not get pushed aside by saving life?

But what’s the problem? A person can forgo his money.

No, if you forgo it then of course there is no problem at all. But no—really, any person—now I’m standing here and saying to you: forbidden. I do not want to; I do not agree that you should take it. Are you allowed to take it? That is the question. It doesn’t matter. What difference does it make? Theoretically, if there is someone like that, what do we do?

The discussion really can be a legal discussion. Didn’t the Talmud just not want them simply to declare the money ownerless in such a case?

Of course. Declare it ownerless—it’s ownerless property.

Right, but they decided not to, and maybe one can understand why not. Because, you know, everyone will take the other person’s money and say, “Yes, yes, I was in mortal danger, and the sages already declared the money ownerless, and everything is fine.” That could lead to great anarchy. So ideally that may be the reason, I don’t know. In any event.

So in any case, what do we really see here? We see here a conception that apparently at least several other medieval authorities join—the conception of Rashi—that where there really is a prohibition of “do not steal,” that indeed is not pushed aside before saving life. Rather, there are situations where that prohibition is not present, and then it is fine. But if the prohibition were present, then no. How can one understand such a thing? What does it mean? After all, all the sins in the Torah are pushed aside before saving life. How can it be that the prohibition of theft—yes, as we said, a fortified wall—you cannot cross it even for saving life; it remains standing?

Maybe because it does not take effect at that moment?

What do you mean?

Meaning, now he steals it to save your life, but these are not two things that…

The compensation will come later. If I’m saved now, then maybe it is permitted.

I haven’t seen such a distinction.

No, what? Violating the Sabbath—you can’t violate it if the danger is only for another five minutes?

No, there is a dispute about that, you know, with a positive commandment overriding a prohibition and various things like that. So is there such a rule here too?

No, with this law clearly not. Saving life applies even if it’s another five minutes later.

Not in this law, but I think one could say the same reasoning that they say regarding a positive commandment overriding a prohibition: it will destroy society, perhaps.

What? Saving life does not override?

No, but in the end what you said earlier is also something one could take in this argument. It will destroy society if every person feels that this really… that it’s not really because suddenly there was mortal danger and he took his money.

That it’s like the tax authority.

Fine, but still there is something here that you need to ground in some condition. What are you saying? That the basis of this law is “that which the court declares ownerless is ownerless”?

Well, that is a very big novelty, so one would have to say it explicitly. Meaning, yes.

I think there may be two possible answers here that complement each other. The first is that saving life that is solved through money is something very, very subjective. And I’ll tell you what—and it reflects a tremendous lack of faith. What do you mean? “What if something happens?” “I need money now, and if I don’t take from him I’ll die.” What do you mean? Maybe the Holy One, blessed be He, will take care of me? How can I even…

Is charity not also a lack of faith?

No, but to the point of permitting me to steal, that means I know there is no other escape. There is always another escape. Always.

What do you mean? Is one not allowed to violate the Sabbath to save life?

Heaven forbid. No, I didn’t say… the Holy One, blessed be He, asked me to violate the Sabbath, not to violate the Sabbath. He asked me not to steal.

What do you mean?

Fine, but let’s compare with the other case.

What do you mean? The other person is not a party to my feelings of danger.

Now here I’m about to get to that formulation, and with that one I do agree. Meaning, there is here, I think, an extension of Rabbi Shimon Shkop’s principle. Rabbi Shimon Shkop’s claim is that, contrary to what we usually understand—Rabbi Shkop whom I mentioned earlier—contrary to what we usually think, the fact that I don’t steal from my fellow is not because of the prohibition of “do not steal.” The money is not his because I have a prohibition of “do not steal.” Rather the opposite: the prohibition of “do not steal” exists because the money is his. He has a right to his money, and the Torah recognizes that de facto and says there is also a prohibition of “do not steal” if you take the money.

Now I am facing a dilemma: I’m in danger, and there is someone else’s money that I can use to save myself. So they tell me: look, the prohibition of “do not steal” is pushed aside, like all the prohibitions in the Torah except for three grave ones. But what does that have to do with the prohibition of “do not steal”? Where did his right disappear? After all, he has a right to his money. That is not a prohibition. He has a right to his money; that is outside your realm. So regarding the prohibition of “do not steal,” you are right, it is pushed aside like the other prohibitions; there are only three grave exceptions. But the fact that I am forbidden to take another person’s money is not because of the prohibition of “do not steal,” but because it is the other person’s. And the other person—there is some sort of wall separating me from him. It is not because of the severity of the prohibition at all. It is not a question of severity; it is a question of the type of prohibition.

I think I gave the example—and if not, I’ll give it now—of my clownish friend from Bnei Brak, who, when we were sitting around a table and he saw a book that he coveted, yes, with someone reading there, said to him: “Look, I have two options: either violate ‘do not steal’ and have the book with me, or leave the book with you and violate ‘do not covet.’ So since in any event I violate something, at least let the book be with me.” Now of course there are mistakes here in the definitions of “do not covet”; he knew that very well, he knows how to learn. But what is the basic mistake—let’s say everything were right. Still there is a fundamental mistake in this argument, even if he were entirely correct in the definitions of “do not steal” and “do not covet.” There is a basic mistake here, and the mistake is that you cannot make correct halakhic calculations about my money. Meaning, they are correct—they’re not incorrect—but the money is mine. I make the decisions whether to give it to you or not. The reason you do not take the book from me is not because of the prohibition of “do not steal.” You do not take my book because the book is mine. That is why there is also a prohibition of “do not steal.” But you do not take it because the book is mine. Even from a non-Jew you are forbidden to take it, although there according to some opinions there is no prohibition of “do not steal,” because the book is mine.

So this is something you cannot… There is a certain realm—and maybe in one of the coming sessions I’ll devote a meeting or two to this—there is a certain territory around the person within which he can conduct his halakhic calculations. And they are valid—not because they are not valid. I’m not talking now about an invalid calculation. Assuming the calculation is correct, saving life overrides “do not steal.” Right? It overrides. So now what? Now I can take the other person’s money because I made my calculation: saving life overrode “do not steal,” we said I can take it. But outside your own territory you do not go—not because of Jewish law, but because that is his territory. You have no business there. You are right, he is wrong, he is a wrongdoer, he will answer for it before the Holy One, blessed be He—but that is his account with the Holy One, blessed be He. You do not make halakhic calculations about his money.

So how do you explain “that which the court declares ownerless is ownerless”? And how do you explain social obligations?

I’ll get to that in a moment; that’s something else. I’m speaking about a private individual. So the issue of “do not stand idly by your neighbor’s blood,” and if you save someone, you can receive reimbursement for what you spent. Meaning what?

And for payment, yes—that’s for payment. Meaning that despite the fact that he has an obligation to save you, right? For payment. Why should I lose out? You lose out—you were saved, what do you mean?

So that works from the opposite side: just as you cannot—it’s the same thing—that is also why you cannot take from him and save yourself with another person’s money, because even when he saves you, he deserves money. If a person saved you—when do you say you are allowed to steal? When you have a duty to save, so you go and take someone else’s money. Why? Because you have a duty.

No, if I can’t repay him, he still has to save me.

Doesn’t matter. So he has to save you even if I can’t repay him for the money. Right, that remains true.

Fine, but if I have no money, and he knows he’ll never get it back, can he refuse to save me?

He cannot. A person must lose all his money for “do not stand idly by your neighbor’s blood.” So this is not conditioned on my returning the money to him—his duty to save me. True, if I have money, strict justice says: return it—why should he lose out? But it is not conditioned on that; meaning, he has to save me in any case.

But why does it work the same way? The person from whom, let’s say, I want to steal in order to save you—that person from whom I want to steal is obligated under “do not stand idly by your neighbor’s blood.” He has to give all his money to save you. That’s what Rashi says—I’m talking about Rashi. And Rashba, for example—were it not for “do not stand idly by your neighbor’s blood,” still there would be “do not steal.” So what is the problem?

So in light of what Rabbi Shimon Shkop said, it seems to me one can very much understand Rashi and the group of medieval authorities if they really join him: there is something about the other person that is not subject to my halakhic calculations. So I cannot make halakhic calculations when the matter concerns the other person—not because those calculations are not correct. They are correct, in the Torah’s rules of overriding, everything is fine, I made the correct calculation, I am a Torah scholar. It makes no difference. Even a correct calculation I can make only regarding things relevant in my territory. I cannot make a correct calculation about your money. Regarding your money, you decide. And if you decide to be a wrongdoer, then you are a wrongdoer; it doesn’t matter; the Holy One, blessed be He, will settle accounts with you, but you are the one who decides about your money.

And therefore there is “be killed rather than transgress,” in this sense, regarding theft. It is not because there is some prohibition of “do not steal” that is so severe. It’s not about the severity of the prohibition at all. It may be that the legal prohibition is not severe. But it is the kind of prohibition about which only I decide. I am the owner of the money; I am the only one who can decide whether to give you the money or not.

Such a consideration—people don’t care, what do you mean? I mean, I work, I don’t care, fine, that is another discussion. I want to live, excuse me—I don’t want to die, what do you mean? I’m biological.

That—I can give a class on too. Okay.

In all the sacred writings too—the Talmud says there that when my house is on fire, I am forbidden to save anything except food for three meals, sacred books, clothes for that Sabbath, and so on. Who can stand by that? Who can stand by that? Now the prohibition on saving there is a rabbinic decree lest he come to extinguish the fire. And if he extinguishes, what would the prohibition be? A labor not needed for its own sake—a rabbinic prohibition. Right? He doesn’t need the coals. He probably doesn’t need coals, not in that quantity. So it’s a rabbinic prohibition. Thus we have a decree lest one violate a rabbinic prohibition. And you know what? I’ll violate it and that’s it. Look.

Elsewhere Tosafot in tractate Shabbat on page 4 speaks about removing bread from an oven. They permitted a person to remove bread from the oven. Tosafot asks: how did they permit a person to remove bread from the oven in order to save himself from the prohibition of the bread being baked? Then it would be a prohibition punishable by a sin-offering or stoning. So Tosafot says: what do you mean, he won’t stand by that. What will you tell him? That he has to die because it is forbidden to remove the bread? Removing bread is a skill, not a labor—it is a rabbinic prohibition. Right? Now he has to leave the bread in the oven because of a rabbinic prohibition and enter into a prohibition punishable by stoning? They’ll stone him tomorrow morning. So what? A person won’t stand by that. So Tosafot says that in such a situation, we do not impose the prohibition. Here is the opposite consideration, similar to what you said. In a situation where it is clear that a person won’t stand by it, apparently we cannot impose a prohibition on him. Fine, that is a topic in itself.

In any case, yes?

With this principle of territory, does it have practical implications for many monetary issues?

Certainly, certainly. I’ll speak about it. I said I’d devote at least another meeting to it.

So anyway, the claim I want to make is that the view of Rashi and his camp is that the prohibition of “do not steal” really is overridden by saving life. But the reason you do not take the money from the other person is not because of “do not steal,” but because it does not belong to the territory within which your calculations are relevant. The one who determines what happens to my money is only me. No one else, no matter how justified his considerations may be. In a moment I’ll come to “that which the court declares ownerless is ownerless” and society. So that is the claim.

Now if that is so, it seems to me that this is also the understanding of the author of Arukh LaNer. When Arukh LaNer says that there is “be killed rather than transgress” regarding all interpersonal commandments such as humiliation, theft, injury, and things of that kind—he even mentions desecrating the dead, I think. So what does he mean? He certainly does not mean to say there is “be killed rather than transgress” regarding the commandment of charity. That too is an interpersonal commandment. Or helping another person, or “love your neighbor as yourself.” There is no “be killed rather than transgress” there. He does not mean interpersonal commandments in general; he means Choshen Mishpat. Meaning, he means that if the obligation on you is based on the right of the other person, then your obligation is overridden by saving life, but what happened to the other person’s right? It remains. So your obligation falls away because you are in mortal danger, but then it rises again because his right still remains in place. His right is not overridden by your saving life.

And therefore, once again, when you come to humiliate him or injure him—that’s what I told you at the beginning, that it all follows from the law of theft. “Like theft” means it is an intrusion into territory that is not mine. The decisions about whether to injure me or humiliate me or, I don’t know, take from me—that all belongs to me. Why? Because the obligations imposed on you are based on my rights. Therefore this is what distinguishes Choshen Mishpat. Since, as with theft that we saw earlier, because my obligation not to rob you is based on your right to your money—a Choshen Mishpat obligation—then if I am in mortal danger, my obligation is overridden by that danger, but your right remains intact. If so, I still cannot take. And that is what Rashi and the medieval authorities with him say, and this is apparently also what the author of Binyan Tziyon means. Understand?

Yes. Two things. First, this is certainly a lone opinion. Meaning, even if we try to bring a few more medieval authorities into Rashi, to extend this now over all of Choshen Mishpat is certainly a lone opinion. Besides that, this understanding of Rashi is in any case not the practical law. Meaning, even if he is obligated, as Rashba says, fine; or in order to pay, Tosafot and the Rosh, fine. All those limitations. In the Tur, I don’t know if it appears that way.

No, no, no—that is exactly in the Tur, as several later authorities said. I saw it in the Tur itself. I don’t remember whether Arukh HaShulchan says it that way. I don’t remember the formulation there. It doesn’t matter; I’m talking right now about the principle. The principle—but I’m saying this is a principle that the other great authorities did not adopt. The other medieval authorities say there is a limit. Meaning, in a case of saving life they did not agree to all the…

Yes, they do not agree with how far you took the principle. But I think the principle itself is correct. The idea of an obligation grounded in a right is a very important point. It is a point that says that even if your obligation is overridden by something, if the basis is the right of the other person, that still does not mean you may act. Now true, they say: look, where there is mortal danger, we nevertheless permit you even though it is the other person’s right.

Wait, the second question is that after all, even if this is not in the area of Torah prohibitions in the count of 613, still saving life also overrides…

That’s what the other medieval authorities say, yes. But they do not disagree with the intellectual logic. They do not disagree with the basic principle that your rights are not overridden by my saving life. Fine, but they did not understand Rashi’s logic.

No, Rashi says that in such a situation there is some kind of wall between me and you. I cannot cross that wall physically; it is a reality. Not because the wall is severe, but because one cannot cross it.

A person is a kind of wall, or else he crosses it or breaks it.

Right. No, it is not an unbreakable wall. No—normatively unbreakable. Normatively unbreakable.

But I don’t understand this norm. Saving life is a norm more important than the norm of crossing.

No, no. According to Rashi and those with him, preserving the boundary between one person and another apparently is more important. They are not willing to give up this blurring of boundaries between people because…

But it is somewhat reasonable, because the problem is that in the end saving life is subjective. After all, that’s what…

Concerns about weak norms.

Those are already more distant considerations, yes. Those are already more remote considerations. But the basic issue is whether it is true. Your concerns do not make it subjective. What do you mean—so how does he present it?

And therefore he can still do it?

What?

They say even this is overridden by mortal danger. So the legal prohibition will not be stronger than the rest of the Torah’s prohibitions—that one can understand. That is the… and the one who gave an explanation was Rashi and those with him. I only brought it in order to sharpen the point, which I think is accepted even by the other medieval authorities, and the question is how far one takes it. So now Rashi and his camp too—they speak about the principle, but in practical law I think even they would agree that…

Rashi says a person may not save himself with another person’s property. There is the famous issue of two tannaim walking because of flooding, and one of them goes through a field and causes damage, and there it is not mortal danger at all, just pressure.

Right, so the question there is whether there was some assessment that the field owner would agree, for example; then of course it is permitted, based on the assumption that he agrees, certainly if I’ll pay him later. So one has to check exactly what the context is there; I don’t remember at the moment.

In any case, yes.

What about a point like this—that what everyone agrees to is that there is some absolute justice and law here? But it all depends on what society decides. So let’s say the government decided that a cellular company may charge such and such an amount, then I’m subject to that. They changed their minds, now they can’t—I’m subject to that. According to the Torah, whatever the economy decides and all that…

Right. Even though, you know, there are—what they call today… I am subject to it whether it is just or not. And there are concepts used in the legal world like proportionality, and to an extent justified by the values of—I don’t know what—all kinds of words that hide behind them many possible interpretations. It is the same in Jewish law. When Jewish law speaks of the law of the kingdom, it says that the law of the kingdom does not apply where this is royal extortion, where the law is unjustified. Now who will determine that the law is unjustified? The king says it is justified. I will determine, or the sages will determine, whatever. There is no choice; every system is like that. You establish the general authority. Clearly there is a limit. And there are certain boundaries where it is wickedness or something so outrageous—extortion, whatever—that there cannot be “the law of the kingdom,” and then there will not be “the law of the kingdom.” But the rules here are not mathematical rules. Meaning, this is a more dynamic system than we tend to think. But yes, that is the basic structure. The basic structure is that the kingdom has authority to determine, or the community has authority to determine. And as long as it does not cross the boundary of…

You’re saying that I’m obligated—we are subject to a system that is not just.

Right. Right. Just as the law obligates us to be subject to a system that is not just, and there everyone is perfectly fine with it. Why is everyone fine with it there? Because there is importance in having order in society, even at the price of a certain level of exploitation. Where it is already obvious wickedness, then no, of course.

Fine, okay, that’s clear. In any event, I now just want to complete the move, because it seems to me that in terms of time we’re in a difficult state. So I return for a moment to the paradox with which I began. Now it is obvious; there is no paradox here at all. Meaning, on the one hand they tell me that one can stipulate, custom can change Torah law, and so on. Why? Because in monetary matters, or in Choshen Mishpat, what is established is not my obligation but your right. Now if you waive the right, health and blessing to you. The Torah gave you rights. No problem—you can waive rights. The Torah did not say that I have to pay. The Torah said that you have a right to receive. If you want not to receive, no problem, you may. Afterwards you could even give me as a gift what I gave you, right? Therefore in monetary matters one can stipulate.

Why does custom or the law of the kingdom also determine matters in monetary law? Because—and here I’m coming to what was asked earlier about society, about “that which the court declares ownerless is ownerless”—because once society determines it, it determines it as my representative. After all, who is society? Society is the collection of citizens that compose it. When the authorized government in that society or community determines that in this case we rule that a paid bailee is exempt from theft and loss, no problem. Why? Because it is as if I myself did it through the legislators who represent me. Okay?

Now once I waive rights, what’s the problem? It is permissible to waive rights. The Torah did not say he must pay me and if he doesn’t pay me he is a wrongdoer. The Torah said I am entitled to receive. But if I do not want to receive, and I’m not entering now into the question of what waiver exactly means—whether it is as if I already received or whether I simply forgo—it doesn’t matter at all; it won’t depend on that. Meaning, since the matter is defined as my right and not as your obligation, then the Torah does not want you to do it; it wants me to be entitled. Now if I want it to happen and I am entitled, then do it; the religious court will make sure you do it. But if I don’t want it, no problem. The right was given to me and I waived it. That is perfectly fine.

On the other hand, if I do not waive it, if I do not waive it, no one can do anything with it—only I. The other person, according to Rashi, must even die rather than infringe my law; and according to Binyan Tziyon, what I said earlier, to infringe my… whether my honor or my money, or certainly to injure me and the like. Why? Because what concerns my rights is something intimate to me. It was given to me. I can decide whether to realize those rights or not to realize them. No one else can decide. I say society can, because society does it as my representative; it is as if I myself waived them, because society does it in the name of all of us—the sages.

Even if you explicitly object.

Yes, that doesn’t matter; you are part of society. It is like someone who explicitly objects to a law. So therefore there is no contradiction between these two sides of the coin: on the one hand, this is the most flexible thing in the world—I can stipulate, and there is custom, and there is the law of the kingdom, and all of that determines things in monetary law, which we never heard in Yoreh De’ah. In that sense Choshen Mishpat is far easier, more flexible. On the other hand, if I did not waive it, then Rashi and his camp took it all the way to the end. Meaning, there is no way to cross this line, because it is mine. The whole idea is not the severity of the prohibition. The idea is the type of prohibition: it is a prohibition grounded in a right. A prohibition grounded in a right—even if it is light, it makes no difference at all—not because it is severe, but because this is my territory. It was defined as my territory.

Now I want one more remark, and with this I’ll finish. There is a big question about Choshen Mishpat: why was it established at all? If really everyone can stipulate, and local custom determines, and everything follows custom and the law of the kingdom, then what is the meaning of everything we do all the time when we study the Talmud and the decisors, the medieval and later authorities in Choshen Mishpat? What is this—what jurists call a default arrangement, right? A dispositive arrangement. Meaning, if you didn’t—if we didn’t determine otherwise—then a paid bailee is liable for theft and loss. But there is absolutely no problem: a paid bailee may stipulate to be like an unpaid bailee, and an unpaid bailee may stipulate to be like a paid bailee. And the Mishnah there writes this as entirely valid from the outset; you are not a wrongdoer if you do it. It is permitted; there is no problem at all. So if it is permitted, why does the Torah bother to write such details and fine distinctions, and why do we labor over these matters and try to understand what they are? This is merely a default, and in certain cases—for example, like our case today—when there is some orderly arrangement in law or in the customs of society, communal enactments, then this whole business is void, it has no significance. So in what sense is this Torah?

And also the ideal—not just a default; it’s also the desirable arrangement.

Wait, I don’t know. If it were the desirable arrangement, then there should have been something problematic in someone who does otherwise. It does not sound from the medieval authorities that there is such a problem.

And that means that on some levels, or for society, there is value in being on some levels, but I haven’t seen anyone say: listen, ideally it would have been appropriate that you do it—not obligatory, but it would have been proper. No—society should do it, but why not? Why is there no such statement? At least that’s not what it seems from what one finds there.

And this seems to me very similar, but I’ll put it slightly differently. The claim is this: Rabbi Yechezkel Abramsky basically asks this question. He has an article on monetary law, and he asks this question there. I brought the example of interest from that article. He wants to claim that the Torah penetrated to the depth of human intention. Meaning, what we have here is basically some kind of psychological assessment that when two people make an agreement about paid guardianship, their assumptions are probably that he will be liable for theft and loss and exempt from unavoidable accidents. Not approximately, but that is what they actually mean—unless they said otherwise. If they said otherwise, then they want a different contract. But if not, then the Torah simply identifies what people intended. Meaning, the Torah penetrated to the depth of human intention. Basically the sages. Torah or sages, it doesn’t matter—depends which law. There are both kinds.

Maybe—maybe there is room to discuss on that basis that perhaps in different periods it would be different, I don’t know. Or that later periods would count as a stipulation. It doesn’t matter, but that is what he says.

Now I think this statement is difficult because he is basically claiming that Choshen Mishpat is a collection of psychological facts. What people intend when they make a paid-guardianship contract. When they don’t do—they say, “Here, you are a paid bailee,” and they determine nothing else—then they probably mean this. So in principle I should really go to the psychology department and ask people: do a survey or something, check and tell me what people mean when they make such a contract. Why does the Torah need to determine the psychological determination? And more than that—why is it holy? Meaning, why is this Torah? Fine, psychology. To study psychology, does one have to recite the blessing over Torah study?

Yes, and from the other angle: when I study law, should I recite the blessing over Torah study? Regarding many laws today, what determines practice is state law, not the Shulchan Arukh. So why, when I study law, do I not recite the blessing over Torah study, while when I study Choshen Mishpat—which in large part is no longer relevant, genuinely no longer relevant, not sadly no longer relevant—then yes? What is the difference?

The difference, I think, is another one. I already spoke about this once: Torah is not facts. Torah is not facts. Torah does not deal in facts. Meaning, I brought the example of the presumption that a person does not repay within the term. The Torah—the Talmud—is not coming to teach us the human tendency to postpone repayment of debt, human nature. That is a fact. And that fact might also change; maybe yes, maybe no, it doesn’t matter. But Torah is not meant to teach us facts. Torah comes to teach us norms. And the norms that Torah teaches there in that passage are that if there is a presumption like this—that a person does not repay within the term—then money may be extracted on its basis. Meaning, if he says “I paid,” we do not believe him. In other words, the Torah introduces the normative layer of the discussion, not the factual layer. Torah does not deal in facts. Facts—look around and see. The sages looked; professionals, experts looked, whatever. But there are ways of clarifying facts. The Torah does not need to establish facts for me. The Torah establishes the norm.

The same here. When the Torah says a paid bailee is liable for theft and loss, it is not saying what two people intended. It is saying what is right. Meaning—what do I mean by “what is right”? If you made a paid-guardianship arrangement, then liability for theft and loss is what is due. That is the truth there—the pure normative truth. Now you can, with no problem, waive it. Why? Because it is a right. A right I can waive, as I said before; that is perfectly fine. But that is the whole idea. A stipulation contrary to what is written in the Torah is not really a stipulation contrary to what is written in the Torah. Why? Because he cannot cancel this right from the Shulchan Arukh. This right—liability for theft and loss—exists and stands forever. Not because that’s what we intended, in my humble opinion, but because that is what is right. If I paid, that is what is due to me in return. The Torah establishes a norm—what is right.

Now obviously, if liability for theft and loss is due to me, I can waive it. What’s the problem? It is only a right due to me. If I waive it, there is no problem. I did not go against the Torah, because the right stood in my favor. The fact that I decide not to realize it—the Torah did not say I must realize it. The Torah only said that I have such a right. And indeed I do. Now if there is custom, the law of the kingdom, or a contractual stipulation that in a given case we do otherwise, that still does not mean that my right to receive liability for theft and loss disappeared. But I wrote in the contract that I waive that right; I do not want you to pay me.

So one second—what I said here is basically somewhat parallel to the distinction the Talmud makes between “on condition that the Sabbatical year not cancel my debt” and “on condition that my debt not be canceled during the Sabbatical year.” Right? “On condition that the Sabbatical year not cancel my debt” means to say: I do not accept the Torah’s law. But “on condition that my debt not be canceled during the Sabbatical year” means: I accept the Torah’s law; now please waive it for me. Or the opposite—not waive it, meaning to pay me even though according to Torah law you would not be supposed to pay. You are allowed to give gifts; no problem.

So the whole idea of a stipulation contrary to what is written in the Torah—and the medieval authorities write this in different formulations, but they do write it—is that in monetary matters such a stipulation takes effect. Simply because you are not stipulating against the Torah. The Torah gives you a right; the Torah does not say that I have to pay. The right certainly remains yours. When you stipulate, you are saying: I will not realize this right. Fine, no problem; the Torah does not require you to realize it.

So this basically means—just a second—that Choshen Mishpat is Torah exactly like Yoreh De’ah and like everything else. Only over that do we recite the blessing over Torah study. Not because it will necessarily become binding in practice. In practice it could be that what was legislated in the Knesset is binding, or what I study in law school. That does not matter. But that is the Torah, not the halakhah. Torah and halakhah are not the same thing. That too maybe I’ll discuss later.

So that is Torah. Meaning, Torah is a collection of principles that are the legal truth. Meaning, if I made a contract of paid guardianship, the truth is that liability for theft and loss is due to me. That is the absolute truth, which never changes. But that does not mean I have to realize it. I am allowed not to insist on my rights. I am allowed not to request the money owed to me. Society is allowed to decide that it waives those rights; no problem.

So the Torah did not establish merely a default here—it is also a default—but the Torah did not establish merely a default or a psychological fact. It established a normative legal truth: that liability for theft and loss is due to me. And who disagrees with all this?

What?

And Rabbi Meir disagrees with all this.

Rabbi Meir—the medieval authorities, Rashba and Nachmanides there in that place, say that Rabbi Meir simply does not interpret that stipulation this way. Meaning, he thinks that the condition “on condition that you have no claim against me for food, clothing, and conjugal rights” means stipulating like “on condition that the Sabbatical year not cancel my debt.” And indeed it sounds from their words that if you explicitly say, “I stipulate on condition that you waive it for me,” they write this, then even Rabbi Meir agrees that it is valid. And therefore the Talmud there, regarding a paid bailee stipulating to be like an unpaid bailee, says that this is even according to Rabbi Meir. It is not dependent on the dispute between Rabbi Yehudah and Rabbi Meir.

If I live in some religious community, is it better that I say I rely on state law and within our community I do the…

Normatively, that is what is due to you. Even in the state, that is what is due to you. I’m not obligated, but they come to you. The Torah has no interest that you necessarily realize your rights. The Torah’s interest is that those rights stand at your disposal. Those are your rights, and no one can touch them. Not the law of the kingdom, not custom, not contractual stipulation—nothing. Those are your rights. The only thing is, you can say: I waive my rights. Just as I can give gifts—what is the problem? They are only rights. That is the whole idea that Choshen Mishpat is a matter of rights and not obligations. So even ideally there is no issue—waive them, do whatever you want. It changes nothing. As long as you do not say, “I have no such rights,” as if against the Torah. That you cannot do. And therefore there is something substantive here. It is not just a default, that if you didn’t stipulate something else then this is the law that applies. That is also true, but it is an expression—an expression of the fact that this is the truth. If you say, “I want something else,” no problem, you make a different contract. Fine, that changes nothing.

But according to this, if I understand you correctly, what happens, say—we basically signed a contract that I waive future rights, right? So if in the meantime he dies, now there are heirs, and they say, “I want the money.”

No, the contract was formed when they signed.

But what does the contract say? That I waive future rights.

No, you waive now.

But I have nothing now. Nothing ever happened yet regarding the money.

I waive the contractual liability through which you are obligating yourself to me for theft and loss.

But if we say that this liability doesn’t exist because the whole reason I can waive it is that it is a monetary right, right? And I can basically give it to you as a gift.

Right.

But I didn’t give it to you. When it comes into existence?

No, no—you didn’t give him the money. Again. There is the money. In the contract—where does the right come from? When do I get the right? When the damage occurs?

Of course not. How does a right come into existence when the damage occurs? The opposite. All rights arise at the moment you enter into the contract. And their meaning is that when damage occurs, you have to pay. The money comes into existence when the damage occurs. The right exists from the moment the contract is formed. And if I waive the right—not the money.

All right. Have a happy Purim. Happy Purim.