Simplicity, Lecture 8

[Rabbi Michael Abraham] Regarding grapes ready to be harvested, that is the point of dispute between them: Rabbi Meir holds that they are considered as though already harvested, and therefore one swears about them; and the Sages hold that they are not considered as though already harvested, and they are like land, so one is exempt. And the law follows the Sages, because we hold that when an individual disputes with the majority, the law follows the majority. And since the law follows the Sages, that one does not swear, this is considered like land. Ri Migash says—and he goes straight to the answer, but what was bothering him was the difficulty. After all, the law follows the Sages that this is considered like land, but grapes ready to be harvested throughout the Talmud are not considered like land; rather they are considered as though harvested and count as produce, not land. And it is specifically regarding a bailee that we say grapes ready to be harvested are not considered as though harvested. Since we are dealing here with a bailee, this is a special case. Here, grapes ready to be harvested are not treated as though harvested. Why? Because since for guarding, while they are attached to the ground, they are entrusted to him, they are

[Speaker B] considered

[Rabbi Michael Abraham] like land, because they were not entrusted to him in order to pluck them. But one who sells to another grapes while attached to the ground, for the buyer to pluck for himself—since he sold them to him for plucking, they have already reached the point of harvest—they are considered as though harvested, and we judge them as movable property in every respect, such as the law of overcharging and an oath and the like, because we hold that anything ready to be harvested is considered harvested, and anything ready to be cut is considered cut, and so on and so forth. What is he saying there? He says like this: generally, grapes ready to be harvested are considered as though harvested; even the Sages agree with that. That’s just the plain Talmudic rule, everybody agrees with it. But what happens here? Here this is a special case because the discussion is with a bailee. And the bailee received the grapes in order to guard them. What is he supposed to do with them? Guard them so that nobody takes them, right? That’s his job, and specifically he has to make sure that the grapes are not harvested. Even though the grapes are already ripe, his role as bailee, while they are with him, is to make sure they are not harvested. Therefore, specifically in his case we do not view them as harvested. In every other case, if there’s just a regular dispute between two people and it’s about grapes ready to be harvested, then it’s like movable property—even the Sages agree. Here specifically, because the litigation is against a bailee, then it’s not like land—sorry, it is like land—even though they no longer need the ground and they are ripe. That’s what Ri Migash says. Now the question is how to understand this. There are several difficulties here. First: what oath are we talking about here? A Torah-level oath. Which of the three? The oath of bailees, right? How can there be an oath of bailees in such a situation? That can’t be. Think of a case where I say to you—let’s say I come to you and say: I deposited ten vines with you. Okay? And you say: yes, that’s true, but they burned. What can I do? It was unavoidable. So you swear, right? Let’s assume for the moment that this is not land. Fine? You swear. What happens if you say: what are you talking about? You never gave them to me. Not that they burned—you never gave them to me at all. What nonsense are you talking? I don’t even know you. Total denial. Are you going to swear the oath of bailees? No, obviously not. After all, you don’t admit that you’re a bailee at all. The oath of bailees applies where it’s clear that you are a bailee—both you and I agree on that. You’re only claiming unavoidable circumstances, saying, what can I do, I’m exempt. Then we’re already within the context of bailment. In the laws of a bailee, if the bailee wants to exempt himself, he has to swear. Right. But here you are denying that you’re a bailee at all.

[Speaker E] Can’t you go back here to a rabbinic oath?

[Rabbi Michael Abraham] No, maybe there would be a rabbinic oath, but that’s a Talmudic rabbinic oath. I’m talking right now at the Torah level: is he obligated in an oath by Torah law?

[Speaker F] The oath of partial admission.

[Rabbi Michael Abraham] Wait, wait—before partial admission… He is denying everything. He says, you never gave me any vines at all. That’s the case I’m talking about right now. Okay, so there will be no oath of bailees, right? Now what happens in the Mishnah? In the Mishnah he says: I gave you ten vines, and you admit that I gave them to you, but you claim I gave only five, not ten. Fine? So the five that you admit to, you will of course return to me. And what about the other five? Exempt—yes, but swear. What oath are you swearing? Seemingly the oath of bailees. As Ri Migash says, we are talking here about the oath of bailees. But how? Regarding those five, I am claiming that I never received them for safekeeping at all. In a total denial, we said that if I claim I never received them for safekeeping, then I am not considered a bailee with regard to them. Right. Now here, regarding those additional five—five I did receive, but those other five I am completely denying that I received; not that I’m claiming they burned. So how does the oath of bailees apply to such a thing? In what sense does the oath of bailees belong here? No, it’s a Torah oath. In the Mishnah it’s a Torah oath. And the question is how this can be. According to Ri Migash, the later authorities ask this against Ri Migash. After all, you, Ri Migash, are claiming that we are dealing here with bailees, and that’s why it is considered like land—but it cannot be the oath of bailees. It’s true that in fact the later authorities claim this. There’s Tosafot Yom Tov and Rabbi Akiva Eiger and the Shakh; they all attack Ri Migash on this and say no, this is the oath of partial admission. Read the Mishnah—it’s not the oath of bailees. Partial admission. After all, the Mishnah says: I gave you ten vines and you admit to five. Right? So that’s the oath of partial admission, not the oath of bailees. And if it’s the oath of bailees, then let them just say that I totally deny it—why do we need partial admission? This is in a situation of safekeeping. In a situation of safekeeping. But still, Ri Migash’s words are correct according to… Wait a second. So maybe that’s already an explanation—we’ll soon see. Right now the understanding is that Ri Migash is speaking about the oath of bailees.

[Speaker C] So they say it can’t be the oath of bailees, because in such a situation there is no oath of bailees. Besides, read the Mishnah—that’s the second difficulty. Read the Mishnah. The Mishnah is talking about the oath of partial admission, not the oath of bailees.

[Rabbi Michael Abraham] If it were the oath of bailees, why would there be any need to set it up as five against ten? Just say: I gave you one vine—or ten vines, it doesn’t matter—and you disagree, or you say they burned. That’s the oath of bailees, right? So why do they set it up here as me saying I gave you ten and you admitting to five? Clearly the oath being discussed is the oath of partial admission, not the oath of bailees. So what does Ri Migash mean when he says that here it is considered like land because we are dealing with the laws of bailees? That’s not right—it’s the oath of partial admission. The litigation is with a bailee, but it’s the oath of partial admission, not the oath of bailees. Okay? That’s the difficulty. In short, there are two difficulties here. In the Mishnah itself you can see that this is the oath of partial admission, and besides, the oath of bailees doesn’t belong in such a situation, because you are denying the very fact of being a bailee regarding those five. It’s not that you are saying you were a bailee but they burned. That would be the oath of bailees, okay? So that is what is difficult about Ri Migash. In principle, with Ri Migash, you really could have said what you said. Ri Migash does not mean to say that this is the oath of bailees. He means this is the oath of partial admission—but the one who is required to swear it is a bailee. And then it’s not because this is the oath of bailees, but because the person is a bailee. And then, when he received the vines, he was supposed to make sure they would not be harvested. So from his standpoint this is considered like land, and therefore there would be no oath of partial admission, because it’s land—not because of the oath of bailees. Ri Migash is not claiming that this is the oath of bailees. He is claiming that this is the oath of partial admission, only that it is said by a bailee. And when the context is that of a bailee, it is considered like land—not because of the oath of bailees, but because the person is a bailee. Right? So that is something one could have said. But with Maimonides—I’ll show you the wording in Maimonides. Maimonides in chapter 2 of the Laws of Hiring, the next source in front of you, do you see it? He says: if one claims that he deposited something with him, and the other says, I did not say that—rather, put it down in front of you, and I never became a bailee for it—that is, he does not agree at all that he accepted responsibility for safeguarding it. I told him, put it here; maybe I’ll keep an eye on it, but I did not accept legal bailment responsibility. This happens all the time in daily life. Are you willing to keep an eye on my bag for a moment? I’m going to the bathroom. You’re already sitting in line somewhere, okay? You do not thereby become a bailee in halakhic law. I’m willing to keep an eye on your bag, that’s all. I’m not now undertaking to pay if something happens. I’m willing to keep an eye on your bag for a moment, that’s all. So he says—in short, he says: I gave you something to guard. The other says: what are you talking about? I only said I’d keep an eye on it, I was not a bailee. He swears a rabbinic oath that he accepted it only in that way, and included in his oath is that he did not make personal use of it and was not negligent with it—that’s only by way of extension, but it is a rabbinic oath. There is no oath of bailees here. Why? Because the man does not admit that he is a bailee at all. Right? Or if one says, I lent it to you, or rented it to you, or deposited it with you, and the other says, none of this ever happened. Or he says, yes, it did happen, but I returned it to you and the safekeeping ended and no claim remains between us—the defendant swears a rabbinic oath. Here too he swears a rabbinic oath. Because if I say you never gave it to me for safekeeping at all, or I say I returned it to you, then our bailment relationship is over. There is no oath of bailees. The oath of bailees exists only when I say it was taken by unavoidable circumstances, when I am still in the status of bailee and I still owe an accounting, and for that I need to swear. Here Maimonides says explicitly: in such a situation there cannot be an oath of bailees. It cannot be the oath of bailees. Okay? So with Ri Migash, as I said, it could be that he does not mean this is the oath of bailees, but rather that we are dealing here with a bailee, and therefore it is considered like land. But look at Maimonides in the commentary on the Mishnah—no, but look at Maimonides in the commentary on the Mishnah. Do you see it?

[Speaker G] Yes.

[Rabbi Michael Abraham] There’s an underlined line there too. The dispute between Rabbi Meir and the Sages is about grapes ready to be harvested. And the law follows the Sages. And this is specifically if he gave them to him in the framework of safekeeping. But regarding sale, the laws of overcharging, and partial admission, if the main claim was not in the framework of safekeeping, then the legal rule is that they are like movable property. Like Ri Migash. And in Maimonides one really could have understood this the way we explained Ri Migash, the way you said. This is not the oath of bailees, okay? Rather, the meaning is that if he gave them to him in the framework of safekeeping, then in the oath of partial admission—whatever oath it may be—it is an oath concerning land, and one does not swear. Fine? And here it would be the oath of partial admission and not the oath of bailees. I’m not coming to you with a claim in the framework of bailment, but it concerns grapes ready to be harvested. Here these grapes are not like land; grapes ready to be harvested are considered as though harvested. Only because the litigation is with a bailee is it considered like land. But in Maimonides’ legal code it does not look that way. Look in the Laws of Hiring—do you see it? First of all, you have to notice where this appears in Maimonides. Maimonides in the Laws of Hiring writes as follows: one who entrusts to another something attached to the ground to guard, even if they are grapes ready to be harvested, they are like land in the law of bailees. What is that talking about? The oath of bailees or the oath of partial admission? Both are possible. But it’s clear this means the oath of bailees. First, he is not even talking about a case of partial admission, unlike the Mishnah. Right? If he entrusted it to him and that’s it, then “in the law of bailees” means in the laws of bailees. There is no case of partial admission mentioned here at all. More than that, this appears in the Laws of Hiring, not the Laws of Claims and Counterclaims. The laws of the oath of partial admission belong in the Laws of Claims and Counterclaims; it’s unrelated. The Laws of Hiring—well, a hired guardian is one of the bailees. It could have been in the laws of deposit, but the Laws of Hiring are the laws of bailees. So clearly, in Maimonides this is about the oath of bailees, not the oath of partial admission. But in fact, consistently with his view, he does not bring the setup of partial admission—just the regular oath of bailees: I gave it to you, and you have to swear. That’s the oath of bailees. So if these are grapes, then they are like land and one does not swear, and we do not need the oath of partial admission. So how does Maimonides understand the Mishnah? As halakhah, fine, no problem. But how did he read the Mishnah? In the Mishnah he read it as the oath of bailees, so why did the Mishnah use a case of partial admission? More than that, Maimonides himself, as we saw earlier, says that in such a case the oath of bailees does not apply, because after all you are denying the very fact that you were a bailee. How does he read the Mishnah? Okay? It’s not clear. Why? Why? It’s actually quite simple.

[Speaker F] About the first five vines—fine, what do you mean the first ones?

[Rabbi Michael Abraham] That he is liable for them?

[Speaker F] The ones he admits to.

[Rabbi Michael Abraham] Ah, the ones he admits he owes—so he pays those. I’m talking about the two—meaning the ones—he denies; about them he swears.

[Speaker D] If he denies them, then he wasn’t a bailee. Exactly.

[Rabbi Michael Abraham] If he wasn’t a bailee, then he is swearing about the part he doesn’t admit to.

[Speaker D] What’s the case here in the Laws of Hiring? One who entrusts to another something attached to the ground, and something happened to it. Something happened? Right, something happened—they burned.

[Rabbi Michael Abraham] Now I need the oath of bailees. So he says no, these are grapes ready to be harvested—no, no, no, these are grapes ready to be harvested, right? So seemingly they should count as harvested and you should have had to swear. So he says no: since this is the oath of bailees, it falls under the laws of bailees, so it is considered like land. Like Ri Migash. But he follows Ri Migash in the oath of bailees, not in the oath of partial admission, and then I ask: how does he read the Mishnah? In the Mishnah they set it up as a case of partial admission. In fact, according to his view, he does not bring that case, because what relevance is there to setting it up as partial admission? He sets it up as a regular oath of bailees. So how does he read the Mishnah? What is the Mishnah talking about? And why does he not bring the law of the Mishnah?

[Speaker C] Maybe one could force onto him that by “the laws of bailees” he means everything included there, such as partial admission?

[Rabbi Michael Abraham] That should have appeared in the Laws of Claims and Counterclaims. In the Laws of Claims and Counterclaims, if a bailee partially admits, then the oath of partial admission would not apply to him. But that is a law within claims and counterclaims; it is not a law within the laws of bailees. Right? After all, the laws of bailees concern what a bailee has to swear and how he has to swear. When a bailee swears the oath of partial admission, that belongs to the Laws of Claims and Counterclaims. In claims and counterclaims, I can come to you with a claim whether as a bailee or as a hired worker or in any claim. There is litigation between us—that belongs to claims and counterclaims, not to the Laws of Hiring. Okay? More than that, it’s also clear that Maimonides himself sensed this, because the fact is that he does not bring the setup of partial admission. After all, that’s the Mishnah’s law. Doesn’t he bring it anywhere at all? Not here—but we’ll soon see that he does. In the Laws of Claims and Counterclaims, chapter 5, law 4—look at the next source in front of you. If one claimed grapes ready to be harvested, and dry grain ready to be cut, and the other admitted part of them and denied part of them—here the setup of partial admission does appear, and not for nothing does it appear in the Laws of Claims and Counterclaims, because here this is the oath of partial admission, not the oath of bailees—he swears concerning them like other movable property. Why? Because grapes ready to be harvested are considered as though harvested. Only in the law of bailees is it not so, but in partial admission it is. And that is provided they no longer need the ground, because anything ready to be harvested is considered harvested with regard to denial and admission. But if they still needed the ground, then they are like land, and that’s all. After that, according to the Sages, right—

[Speaker G] They are exempt from an oath regarding land, and exempt from an oath.

[Rabbi Michael Abraham] In the laws of bailees, yes. But in admission—in the oath of partial admission—even the Sages agree; that’s the whole point. Everything they say applies only to the oath of bailees. In the oath of partial admission even they agree that it’s not like land, because it is ready to be harvested, right?

[Speaker E] But what exactly is the case here? “He claimed grapes ready to be harvested”—what is factually happening here?

[Rabbi Michael Abraham] I gave you grapes ready to be harvested. I gave them to you, or sold them to you and you didn’t pay me, or something like that.

[Speaker E] Fine. Isn’t the oath of partial admission learned from a verse about a bailee?

[Rabbi Michael Abraham] That’s the intertwining of passages—don’t drag me into that now. Actually maybe I’ll address it later. For now, there is a verse from which we learn the oath of partial admission; it’s not directly connected to a bailee. So Maimonides brought the law—Maimonides split the laws of the Mishnah in two, right? The setup of partial admission he takes to the Laws of Claims and Counterclaims, and there he is not talking about the oath of bailees, but there it really is movable property, not… He rules like the Sages, and it is movable property, and the Sages say it is like land only because this is not in the law of bailees. Okay. In the Laws of Hiring, when he talks about the laws of bailees, the oath of bailees, there he brings the case of—he brings the law of the Mishnah, but not in the setup of partial admission, because that is irrelevant; this is the oath of bailees. That’s all. Now the question is how he reads the Mishnah. His rulings are fine; the question is how he reads the Mishnah. The Mishnah speaks in a setup of partial admission, and the Sages say that such a thing is considered like land because it belongs to the laws of bailees, but in partial admission it does not have the status of land the way you are saying here, right? So it is unclear how Maimonides read the Mishnah. By the way, there are many mysteries in Maimonides where people challenge him and don’t know what he wants—you often have to look in Ri Migash. Ri Migash was the teacher of Rabbi Maimon the judge, the father of Maimonides. Yes, Maimonides says that in his childhood he still managed to see Ri Migash, when he was a very small child, and he speaks about him with tremendous admiration—“I saw the face of a man who seemed like an angel of the Lord of Hosts”—really tremendous admiration. So very often Maimonides’ source is Ri Migash. I know several rulings in Maimonides that everyone gets tangled up in, and when you look at Ri Migash everything becomes clear. Ri Migash explains it exactly. It’s simply taken from him. Now the Raavad, right there on the spot, already questions Maimonides. Look at the Raavad’s gloss: “If one claimed grapes,” etc. Abraham said: the author rules like Rabbi Meir, while the master rules like the Sages. You’re telling me here that grapes ready to be harvested are considered as though harvested—that’s Rabbi Meir—but the master, the Rif, rules like the Sages. Usually Maimonides follows the Rif. And Maimonides himself, as we saw, really does rule like the Sages in the Laws of Hiring. In short he says: I don’t understand what you want. How is this connected to the law of the Mishnah? In the Mishnah it says that the law follows the Sages, that it is like land, and you say it is like movable property. Okay? Why? How are you reading the Mishnah? How does this… And then he gets tangled in it. He says maybe what they said in Ketubot, and that there is a dispute, and so on, or that we learn… In short, he gets tangled up in it. Apparently he did not know Ri Migash, who is Maimonides’ source. But still, the difficulty really is a difficulty—how Maimonides read the Mishnah. And Tosafot Yom Tov—look at the next source in front of you. I said that several later authorities ask this against Ri Migash and against Maimonides.

[Speaker C] Tosafot Yom Tov keeps saying every time that it’s connected again to Ri

[Rabbi Michael Abraham] Migash. For now it’s problematic with Maimonides. Ri Migash—not necessarily. Ri Migash… one can explain him not like Maimonides. Ri Migash can be explained as—like you said—that we are dealing with the law of bailees and not the oath of bailees.

[Speaker C] But according to his words, then Maimonides definitely isn’t like that.

[Rabbi Michael Abraham] Yes. Once I explain Maimonides, there will also be no reason to explain Ri Migash differently. I’m just saying that for the moment the difficulty is only on Maimonides, not on Ri Migash. Clearly once we find a solution in Maimonides, it is likely that Ri Migash held the same way too. We are only explaining Ri Migash differently because of the difficulty, okay? So Tosafot Yom Tov says as follows: Rabbi Bartenura wrote, “And the law follows the Sages, specifically in the law of bailees.” Again, he copies from Maimonides and Ri Migash. And therefore Maimonides wrote: “And the law follows the Sages.” Maimonides writes that the law follows the Sages. The Raavad says he rules like Rabbi Meir. No—Maimonides rules like the Sages, when he gave it to him in the framework of safekeeping. End quote. And if you say: why do we need partial admission? Then why is the case one of partial admission? If this is the oath of bailees, let him just say that everything burned. And concerning the phrase “This is it,” from which we learn that partial admission is required—I wrote at the beginning of the chapter, in the discussion of admission, that we cast it onto the section of “If you lend money.” That’s the intertwining of passages—not important right now. In short, the oath of partial admission and the oath of bailees are two different things. The oath of bailees does not require partial admission. And there are those who want to say that even the oath of bailees requires partial admission, but that is not the accepted halakhic ruling. Okay? So why does Maimonides speak here in a case of partial admission? And one may say that we do not completely sever it from the passage in which the intertwining of passages is written, etc. In short, he gets a bit tangled there. And this explanation does not accord with the opinion of Maimonides, because Maimonides explicitly ruled in chapter 2 of the Laws of Hiring—that’s what we read earlier—that none of the bailees requires partial admission. So why does he set it up as a case of partial admission? If so, why does our Mishnah teach, “and the other says, it is only five,” when even if he denied everything he would still be liable? I gave it to you to guard and you deny everything—that’s the oath of bailees. Why do I need partial admission? Fine. Clearly Tosafot Yom Tov understood Maimonides not like the explanation you proposed for Ri Migash. Maimonides is talking about the oath of bailees, not the oath of partial admission of a bailee. And this is also clear from Maimonides himself, because he brings it in the Laws of Claims and Counterclaims. Rabbi Akiva Eiger too, in his glosses on the Mishnah there, raises the same difficulty on Maimonides. Everybody gets tangled up in what is happening in Maimonides. The Shakh in section 95 also discusses this at length, with all these difficulties. Yes: “But what they distinguish, Ri HaLevi, Ri Migash, and Maimonides, between a bailee and other matters, does not seem correct.” He elaborates and elaborates, saying Maimonides ruled like the Sages and not like Rabbi Meir, and Tosafot Yom Tov derived this. “But the distinction made by Ri HaLevi, Ri Migash, and Maimonides between a bailee and other matters does not seem plausible.” First, because such a distinction is not logically compelling. And second, because if so, the Mishnah ought to have stated it explicitly. And furthermore, if so, why does the Mishnah need a case of partial admission? Why does the Mishnah present a case of partial admission if this is the oath of bailees? And from this, Tosafot Yom Tov asked: why partial admission, etc. So those are the difficulties on Maimonides. There is another difficulty. With land, generally, even in the oath of partial admission there is the rule of “here it is.” Let’s say you claim that I owe you land and one hundred shekels, okay? Now I admit the land and deny the one hundred shekels. So in principle I should have to swear, because the oath is about what I denied—the one hundred shekels—not the land. One does not swear about land, but here I denied money. However, with land, once I admit it, we have what is called the rule of “here it is.” “Here it is” means that if I don’t merely admit part and deny part, but I simply hand you the part—fine, take it, it’s yours, obviously—what remains after I gave it to you? Only a dispute over the rest. And regarding the rest I am totally denying. That is not called partial admission. According to the conclusion of the Talmud in Bava Metzia, in a case of “here it is” one is exempt from an oath. Again: you claim one hundred shekels from me, and I admit fifty and deny fifty—I am liable for the oath of partial admission. Now if you claim one hundred shekels from me, and I do not merely admit fifty and deny fifty, but I take fifty shekels out of my pocket and say, take these fifty, they’re yours; the other fifty I don’t owe you—here I am exempt. Why? Because after I gave you those fifty shekels, the dispute between us remains only about the other fifty, and in that dispute I deny everything, I am not partially admitting. Because if there was a dispute over one hundred and I admitted half and denied half, then that is the oath of partial admission. But if I gave you—well, then why can’t he be believed by a migo, since he has the ability to do “here it is,” and so on?

[Speaker E] Fine, that’s another set of difficulties.

[Rabbi Michael Abraham] In any case, regarding a migo to exempt

[Speaker E] from an oath, we do not say that, right?

[Rabbi Michael Abraham] That is a dispute among the medieval authorities (Rishonim): we do not say a migo to exempt from an oath. Tosafot at the beginning of Bava Metzia says that we do, and only a migo involving brazenness does not exempt from an oath. That’s the straightforward reading of the Talmud in the first chapter. So with regard to “here it is,” another difficulty arises here. Let’s say grapes ready to be harvested are considered as though harvested. Fine? Then one should have to swear the oath of partial admission about something that is movable property. But the five vines that I admitted to you, as a bailee—“here it is”—even though he’s a bailee. Why? Because they are here in the ground. I do not need to take them from my house and bring them to you; they are here. With land, as the Talmud in Bava Metzia says, once I admit the land to you, it is as though I already gave it to you. With movable property that is sitting in my house, admitting that it is yours is not enough. Until I actually take it and hand it to you, it is not called “here it is.” But with land, once I admit it, that’s it—it remains in the same place; you don’t take the land and hand it over. So once I admit that it is yours, that already counts as “here it is.” Therefore it exempts me even if the rest is movable property—even though what I deny is movable property, I am exempt from swearing. That is what comes out of the Talmud in Bava Metzia. You can also argue about that, but that is the plain sense of the Talmud there. So the claim, if so, is that here this whole business of partial admission is not clear at all. So what are you, the other medieval authorities (Rishonim), saying against Maimonides—that this is the oath of partial admission and not the oath of bailees? Still, why is he swearing? You tell me because it is movable property according to Rabbi Meir. Because it is movable property, fine—but the five vines that I admitted to you, after all I have effectively handed them over to you; this is “here it is.” Even if this were movable property, you should have been exempt from an oath. I claim that this is evidence that we are dealing here with the oath of bailees and not the oath of partial admission. In the oath of bailees there is no rule of “here it is.”

[Speaker E] But if it’s movable property, then it’s not part of the land, right? If it’s movable property, then it isn’t part of the land.

[Speaker B] He definitely returned it. No—why?

[Speaker E] But if he admitted it, that means—he says that with land there is “here it is.”

[Rabbi Michael Abraham] Physically it is attached. Yes, but what difference does it make that legally it is considered as though harvested? After all, it is sitting here. I don’t need to take it and give it to you. You take it yourself—pluck it.

[Speaker E] No, but the moment you gave it the status of something already harvested, that means it’s already—it’s as though it’s not part of the…

[Rabbi Michael Abraham] No, of course it has the legal status of movable property, but in reality it’s here. If I admitted it to you, I handed it over to you. It doesn’t matter that it has the legal status of movable property. In practice, this reasoning of “here it is” exists even for grapes that are standing ready to be harvested; that’s obvious, it makes no difference. So that’s really a third difficulty. Why is the Mishnah dealing with partial admission? Right? What does the oath of bailees have to do with this when I’m denying that I’m even a bailee in the first place? So those are two difficulties on Maimonides and the Ri Migash, on the Sages according to Maimonides and the Ri Migash. And the third difficulty is the difficulty on Rabbi Meir. Why does Rabbi Meir obligate an oath? Because he says it’s considered as if already harvested. Fine, but the rest is a case of “here it is,” so why are you obligating an oath? Okay? So the claim, what I want to argue, is the following claim. People ask about this. What? Yes, yes, they ask about it, they leave it as requiring further analysis all over the place. Because these are difficulties that have no answer. There’s a forced answer, like the Shakh says, maybe you can try to give one, but the Shakh says it can’t be, it’s wrong; he rejects Maimonides in practice and the Ri Migash because of this. It can’t be. So it could be that he agrees—I’ll explain to you why this is correct. What happens in the oath of partial admission? In the oath of partial admission, you claim from me one hundred shekels. Oren claims from me one hundred shekels and I admit fifty. Why am I obligated to swear about the other fifty? I’m in possession; the burden of proof is on the claimant. Why do I have to swear? So the argument is this—and it depends on how one learns the first statement of Rabbi Hiyya, not important right now, it’s a certain way of learning it that explains many other difficult things in the Talmudic text, but to my mind it’s clear that that’s what it says there. And it’s the plain simple meaning. If you asked a random person on the street, that’s what he’d say. It’s just that from the Talmudic text it’s hard to see it, because the Talmud seems to go in a different direction. Once you claimed from me one hundred shekels, and I admitted fifty, that means there was a loan. Now we only have an argument about how much. That’s not the same as if you claim from me and I deny everything. I say there was no loan, or I repaid everything—what do you want from me? I don’t know you. Right? In that situation I’m already in a defensive position? No—the claimant is in a defensive position. Bring proof that you’re even connected to the matter. What do you want from me? It’s with me, I’m going home. If you don’t bring proof, then that’s it. Here I can’t go home; I admit there was a loan. I just have to explain: I only took fifty, not one hundred. We have an argument over what the amount of the loan was. But you can’t deny that there was a transaction here between us. No one can go home and say, I don’t know you. Right? In that situation the Torah obligates you to take an oath. We won’t extract money from you, fine—you still are the one in possession, and the burden of proof is still on him—but there’s already something here. You’re not just waving him off and saying, what do you want from me? There are grounds for the claim, or in the language of the Talmud, there is a monetary connection—there is some link to the money that you can’t deny. The claimant didn’t come out of the blue. There was a loan, and now we only have an argument over the amount. In that situation you’re already in a certain defensive posture. You want to say: true, there was a loan, but only fifty. So you’re already defending yourself. And if you’re defending yourself, they require from you some kind of evidence too: swear. That’s the simple reasoning behind partial admission. Now the question is how to read Rabbah: why did the Torah say that one who partially admits the claim must take an oath? But there they bring in “migo” and all kinds of things like that. I’m saying that the whole Talmudic discussion there is really a second-order discussion. It has nothing to do with the basic obligation—why I am obligated in the oath of partial admission. The oath of partial admission is sworn because of what I just said. What Rabbah is asking there is why we do not exempt him, since after all he has a “migo.” Not why the basic obligation exists. There’s a dispute among the medieval authorities (Rishonim) there, but in my opinion

[Speaker F] those medieval authorities (Rishonim)—that’s the plain meaning of the Talmudic text.

[Rabbi Michael Abraham] “A person does not brazenly deny in the face of his creditor,” and all the explanations there in Rabbi Hiyya. But all that is discussion about why the “migo” does not exempt him from the oath, not why the oath exists in the first place. Okay? But that’s what I’m arguing. Now what happens with the oath of bailees? So what is the oath of bailees based on? When you deposited something with me and I say, no such thing ever happened, then I’m not a bailee at all. Who knows you? Right? Exactly the same idea. I don’t know you—what do you want from me? Of course I shouldn’t need to swear. If I say, it was burned, then there was a deposit, there was a bailment contract, right? But I want to exempt myself. This is the oath of those who seek exemption. I want to exempt myself, but there is some claim against me here. It’s not a claim I can just ignore completely. What do you want? Bring proof first. No! After all, I too admit that I am a bailee and that we made a contract. Now I need to show you that that’s really what happened, that I wasn’t negligent, that everything is in order. So I am defending myself. Therefore the Torah obligated me in the oath of bailees. Do you see the similarity between the oath of bailees and the oath of partial admission? There is a similarity. They’re two different situations, but the idea is that basically we’re dealing here with the oath of someone who is defending himself. True, he’s in possession, but he’s in possession with a certain weakness in his position. He has to defend himself. There are also grounds for the claim. It’s not that I can say, what do you want—show that you’re even connected to the matter. No, he is connected to the matter, that’s clear. And I am making a claim that exempts me. So I have to swear. That’s what the Torah requires. Now look. If someone comes and says to me, I deposited with you—leave the wood aside for now, whether it’s movable property or land—I deposited with you two cows. Okay? And I admit that you deposited only one cow. So I said: what does the oath of bailees have to do with this? After all, regarding the second cow, I’m claiming that I wasn’t a bailee over it at all, right? Wrong. The oath of bailees does apply here. Why? Because I already admitted that there was a bailment transaction. I’m just claiming that the bailment transaction was only over one cow and not over two. Right. That kind of case is not the same as completely denying that there was ever a bailment transaction. You didn’t give me any cows to watch at all—what do you want from me? About that Maimonides says the oath of bailees does not apply. Maimonides himself rules that; we read it. But when I partially admit within a bailee transaction, the oath of bailees applies—not the oath of partial admission. Because I admit that there was a bailment contract, and now I am trying to exempt myself, right? So look, there’s something nice here. First of all, there is an oath of partial admission here. Certainly—there is also an oath of partial admission here. I’m just arguing that there is also an oath of bailees here. Besides the partial-admission oath, there are two grounds by which I obligate you to swear. But how do I know that the oath of bailees applies here? From the oath of partial admission. That’s the conceptual construction. If you take the rationale of the oath of bailees and the oath of partial admission together, then you’ll see that in a case like this the oath of bailees applies. Why? Like the Rosh on writing “pit” and “fire” in tractate Bava Kamma, chapter 1. It’s exactly the same logic, like the Rosh. What I’m basically saying is this: look, the truth is that this thing is really an oath of bailees. Except what? Here I’m supposedly denying the bailment entirely. But no—the oath of partial admission proves that this isn’t true. Because if you admit part, then regarding the other part it’s not considered a complete denial; you already have a connection to the second part. Right? That’s what the oath of partial admission proves. When I apply that to the context of a bailee, what does it mean? It means that regarding the fifty that I am denying, you can’t say there was simply no bailment contract at all, end of story. I claim there was no bailment contract; he claims there was. But after all I agree that there was a bailment contract between us. I only say it was for fifty and not for one hundred. The oath of partial admission teaches me that in such a situation there will be an oath of bailees. There will also be an oath of partial admission, but from the oath of partial admission I learn two things: first, swear the oath of partial admission. Second, swear the oath of bailees.

[Speaker E] But in practice would he actually swear two oaths?

[Rabbi Michael Abraham] No, no, one oath—but there are two grounds. Not one oath plus another oath. He swears that he doesn’t owe you more than fifty, that’s obvious. But the ground by which they impose the oath on me is both a ground of bailment and a ground of partial admission. Now what happens with the question of “here it is”? That’s more interesting. I’m not completely certain that it exempts her, but it can exempt her. Because there is no exemption of “here it is” in the oath of bailees. In terms of my partial-admission oath, then people ask Rabbi Meir: what is he swearing? After all, this is a case of “here it is.” Right—there would be no oath of partial admission here. But in the oath of bailees there is no exemption of “here it is.” You’ll tell me: what do you mean? After all, the whole rationale of the oath of bailees is learned from the oath of partial admission, right? And in the oath of partial admission, in a case of “here it is,” there is no oath—so then in the oath of bailees there shouldn’t be one either. That is exactly the Rosh, notice. Because the Rosh learns from pit and fire, right? But he does not give the exemptions of fire, only the exemptions of pit. Exactly the same logic. Meaning, you do not give me the exemptions of the oath of partial admission—where in a case of “here it is” one is exempt from swearing—even though I used the oath of partial admission to learn that here one is obligated in the oath of bailees. Because the whole law is the law of pit over there; here the whole law is the law of the oath of bailees, not the law of partial admission. Exactly like the Rosh. It’s literally one-to-one, the same logic. Exactly. Okay? Therefore this is a conceptual construction, and it solves the problem of “here it is.” Now let’s go back to the first two difficulties. Why did the Mishnah set this up as a case of partial admission? It’s obvious why. Because without a case of partial admission there would be no oath of bailees here. I asked: why didn’t they say he denied all ten? Because if he denied all ten, there would be no oath of bailees here, regardless of whether these are grapes or not grapes. Because he is denying the very existence of the bailment. Even if it were ordinary movable property, there would be no oath of bailees. You have to set it up as a case of partial admission. But once you set it up as a case of partial admission, what oath is it that you swear? The oath of bailees. After all, in a case of partial admission you are obligated to swear the oath of bailees. All the difficulties fall away.

[Speaker C] But why isn’t there a situation of unavoidable accident? Why isn’t there a situation where he claims unavoidable accident?

[Rabbi Michael Abraham] After all, if he claims unavoidable accident, then you don’t need the oath of partial admission, so of course he is obligated in the oath of bailees. Even if he claims that everything was lost by unavoidable accident, he is obligated in the oath of bailees.

[Speaker C] And then it would be the simple dispute between Rabbi Meir and the Sages.

[Rabbi Michael Abraham] Let me say that too.

[Speaker C] Right—that’s the main novelty.

[Rabbi Michael Abraham] Exactly. They want to teach you that in a situation of partial admission there will be an oath—the oath of bailees on the rest. That’s it, that’s exactly the point. So now everything works; there’s no problem at all. We asked two or three questions on Maimonides; as for “here it is,” we already dealt with that, right? The other two questions were on the Sages. You rule like the Sages; obviously Maimonides ruled like the Sages. And Maimonides is talking about the oath of bailees, not about a situation involving bailees in general—in Maimonides that’s clear, right? So why did the Mishnah set it up as a case of partial admission? That was the first question. Second question: what does the oath of bailees have to do with this, when he is denying that he was a bailee at all? Answer: those two questions, of course, resolve one another. Once this is a case of partial admission, that’s why it is the oath of bailees.

[Speaker E] So the whole dispute is about whether produce standing ready to be harvested is considered as if already harvested? Otherwise it’s not relevant at all?

[Rabbi Michael Abraham] No, it is relevant. Because if it were not considered as if already harvested, then the whole discussion never even starts; there are no oaths at all on such a thing. Only because it is considered as if already harvested can you begin discussing whether there is an oath or not, and what kind of oath there is. An oath applies to movable property. And if you’re a bailee, then this thing is considered like land and not like movable property—in that context, okay? For the laws of bailees, it’s considered like land and not like movable property.

[Speaker C] So again: Maimonides, in the laws of claims and responses, writes that there is no oath in a case of partial admission among bailees?

[Rabbi Michael Abraham] He’s not talking about—yes, yes, I think so.

[Speaker C] There is no oath.

[Rabbi Michael Abraham] Right. Because in the laws of bailees there is no oath—it’s like land.

[Speaker C] Why is there no oath? If it’s two fruits? Because he denies it?

[Rabbi Michael Abraham] Like land. You don’t swear about land. No—if it’s in a case where he partially admits?

[Speaker C] No, in claims and responses.

[Rabbi Michael Abraham] In claims and responses, then it’s not the oath of bailees; it’s the oath of partial admission. And with regard to ordinary partial admission, this is not treated like land, because these are grapes standing ready to be harvested. Only in the laws of bailees is it considered like land. But in fact, when he brings this law in the laws of bailees, he isn’t talking about a case of partial admission, because the basic law—that in the laws of bailees such a thing is considered like land—you can teach me that even in a case of total denial. It makes no difference. In the Mishnah we gained an additional novelty. The novelty is that if there is a case of partial admission, then the oath will be the oath of bailees. That novelty—that’s the only comment I have—that novelty Maimonides does not bring. Even though apparently that is the novelty of the Mishnah, he does bring all the laws of the Mishnah. Meaning, he brings the law that in the laws of bailees this is considered like land. And he brings the laws that in claims and responses one really does swear on this, because grapes standing ready to be harvested are considered as if harvested. He brings all of that. But there is one further novelty here that he does not bring. He reads the Mishnah this way, but he doesn’t bring it. That’s just a note. Okay? The truth is that there are other passages in Maimonides where you can maybe see this novelty, and then that would solve this problem too, but I won’t get into that here. What exactly is my claim? My claim is that if we look here at the combination of partial admission with the oath of bailees, we can create a new kind of oath—the oath of those who are defending themselves. I said that really partial admission and bailees are both basically oaths of those who are defending themselves, like all Torah oaths really—even one witness. Why does one swear against one witness? Because one witness says that there is some basis here; I can’t just say there’s nothing at all to what you’re saying, so I go on the defensive. I don’t have to pay, because only two witnesses extract money. But once there is already some kind of weakness in the matter, they ask me to swear. Basically the three Torah oaths are like the four primary categories of damages. I have three oaths, but they have a common denominator. And that common denominator basically says that they are all oaths of those who are defending themselves. Then it may be that there will be additional situations, like all the discussions of one’s knife and his load and so on, which will be combinations of these oaths that create further situations of self-defense, and there too you’ll have to swear. That’s the first point. But here, I think, what emerges is a conceptual construction, not a common denominator. Earlier I was talking about what to do with the common denominator of these three oaths. Here, by contrast, it’s a conceptual construction. I’m saying: I take one dimension of the oath of partial admission, one dimension of the oath of bailees, connect them together, and I say: once the situation contains both characteristics together, an oath of bailees is created here. And all of its law follows accordingly, like the Rosh. Meaning, this is really a conceptual construction and not a common denominator. Okay? You can make a common denominator out of it in other situations. Here it is a conceptual construction. Okay? And if we understand it this way, there is no problem at all—no difficulty on Reish Lakish, no difficulty on Maimonides, no difficulty on anything. Regarding grapes standing ready to be harvested, the law of bailees—not negotiations with a bailee, but the laws of bailees—is the oath of bailees. Even so, you still need a case of admission. Everything is solved once you say this is a conceptual construction. Now one last point that I’ll maybe mention on this matter. I said I’d note something about the mixing of passages. The Talmud learns the oath of partial admission from “that of which one says: this is it.” “That of which one says: this is it” means he admits part of the matter and not all of it, and on that he swears the oath of partial admission. Now that verse appears in the section of bailees. And the Talmud discusses this question that I mentioned before: there is a dispute among the amoraim as to whether a bailee has to partially admit in order to swear. The one who says yes says: because the verse “that of which one says: this is it” speaks about the laws of bailees, and this is partial admission, and there it says that you have to admit part and deny part in order to swear. In practice we do not rule that way. In practice we rule: a mixing of passages is written here. What does that mean? There is a verse that really deals with the laws of loans, not the laws of bailees, and it got inserted into the section of bailees. For some reason it got mixed in. There is no chronological order in the Torah—something like that, yes, like that. Okay, a homiletic reading, not important. And therefore it is about a loan, not about bailees; these are two different oaths. There is the oath of partial admission in a loan, and the oath of bailees—two different oaths. Now I ask: why should it be mixed in? Why would the Torah mix things up? There is a section about loans—write the law of loans there. Why, in the laws of bailees, are you putting this into the laws of the oath of bailees? What’s the idea of mixing things there? According to what I’m saying now, it’s very simple. That is the source of what I’m saying. Why does the Torah mix the oath of partial admission together with the oath of bailees? Because it wants to tell me that it is the same oath—the oath of those who are defending themselves. They’re not the same situation, but in both situations you swear because you are defending yourself. That’s why it mixed them. It intentionally mixed two different kinds of oaths in order to tell me that in fact their foundation is one. And if their foundation is one, then you can also build from them—either by conceptual construction or by common denominator—oaths in different situations. In other words, this explains the plain meaning of the Torah: if there really is a mixing of passages here, I understand. But why would the Torah mix them? Is it just trying to confuse us? Why not write it in the section on loans? Because it is coming to teach us this very point: that the oath of bailees and the oath of partial admission are the same type of oath. This is basically the “common denominator” of “property whose safeguarding is upon you” and “when it causes damage” in all the primary categories of damages—the common denominator of the three Torah oaths, that they are all oaths of those who are defending themselves. I can write the whole Mishnah in tractate Bava Kamma about oaths in general, not about damages. And the Talmud in Bava Kamma on page 6, which learns about one’s stone, one’s knife, and one’s load—I can write that Mishnah here, the Mishnah of oaths, which learns from two different oaths and creates from them a common denominator or a conceptual construction. There would be a dispute among the medieval authorities (Rishonim) like the Rosh and the others. I can write the whole first chapter of tractate Bava Kamma about oaths instead of damages. Exactly the same logic, exactly the same logic, one-to-one, I can do the whole thing. There are exemptions; in “here it is” you have a type of exemption like hidden objects or vessels in a pit. It’s really the same structure, exactly the same logic. And one witness? What? No, one witness is a story. One witness too. It appears here too. One witness—what’s going on there? There’s a witness against you; what does that mean? Oh—if no one, if I just claim against you, you say to me, I don’t know you, what do you want? Do I owe you something? I need to interest the religious court by showing them that I’m even connected to the matter; there is no monetary connection here at all. Okay? But if I brought two witnesses then of course we’d extract from you, because it’s clear that it’s mine. I brought one witness—one witness is not enough to extract, but listen, there is still someone here who connects me to the matter. You can’t just say to me, I don’t know you. You still have to give us some kind of anchor. So swear! Exactly the same idea. The three oaths are one thing. In all three oaths we are talking about someone in possession. Although all imposed oaths—those are the oaths of the Mishnah—while the oaths of the Talmud are always exemption oaths. So why, if someone is exempting himself, do we sort of exact something from him—why does he have to swear? It is always because he has some kind of defensive posture, despite being in possession, and he needs to give us some sort of reinforcement. Fine, he is in possession—but it’s possession with a weakness, with some defense that he has to make. And therefore there is indeed a common denominator to these three oaths. These are three primary categories of the same fundamental principle. Okay?

[Speaker E] So why doesn’t the Mishnah say: the common denominator among them is that there is no oath of…

[Rabbi Michael Abraham] The Mishnah doesn’t deal with that. There isn’t a Mishnah parallel to damages in the area of oaths.

[Speaker E] No, if you’re saying it’s parallel, then if in damages it said, the common denominator among them is that their safeguarding is upon you…

[Rabbi Michael Abraham] But they didn’t bring the three—there is no Mishnah that brings the three oaths and discusses their differences and their common denominator. Why they didn’t write such a Mishnah, I don’t know, but there isn’t such a Mishnah here. I’m only saying that when you take this Mishnah and understand what it says and connect it to the other laws, you can basically write Mishnayot here just like in the first chapter of tractate Bava Kamma—Mishnayot and Talmudic discussion. Okay? Good, kol hakavod, kol hakavod. There are a lot of difficulties of Rabbi Meir here that this resolves.