Simplicity, Lesson 16

[Rabbi Michael Abraham] I spoke about the common denominator and conceptual construction, which are two structures that, at least in the way the Talmud describes them, sound very similar, but in their logic they’re opposite. The common denominator is basically taking two source cases, stripping them of their unique characteristics, and being left only with the shared characteristic, and from that learning to all the other things that have that same shared characteristic. Conceptual construction is taking two source cases, taking the unique characteristic of one together with the unique characteristic of the other, fusing them together, and creating a third concept about which we can then learn that the laws found in both source cases also apply to it. And I brought a few examples of this, and in most of them these are examples where there’s no symmetry between the two source cases. I didn’t emphasize this enough last time—I said it, but I just want to sharpen it. Both in the case cited by the Rosh regarding his stone, knife, and load that fell from the top of the roof and caused damage, and also in the case of throwing—or sorry, the case of someone spitting in the public domain on the Sabbath—in both of those places I said that there is really something that looks like a common denominator, but it’s actually conceptual construction. But in both cases, among our two source cases, one has dominant status and the other only an auxiliary role. For example, in the case of spitting, it’s obvious that the primary category of labor you violate—or the labor that’s violated—is the labor of throwing, because you’re moving something four cubits in the public domain, only you’re doing it with the help of the wind, unlike throwing, where it’s done by your own force. The recourse to winnowing as the second source case is only auxiliary. Winnowing only shows us that the involvement of wind does not exempt. That’s all. The same is true regarding the Rosh and the other major authorities: in the end, his stone, knife, and load, once they come to rest on the ground and cause damage, that’s pit. The recourse to fire is, once again, only to show that the involvement of wind does not exempt. But in the end, after I’ve learned that, what we have here is pit. And therefore, I don’t think it always has to be this way, but in many cases the common denominator really is symmetric, while conceptual construction is not symmetric. Meaning, one of the indications that can give us an initial clue that we’re not dealing here with a common denominator but with conceptual construction is if we see asymmetry between the two source cases. That’s sufficient, but not necessary. Meaning, if there’s asymmetry, then it’s certainly not a common denominator. But that doesn’t mean that whenever it isn’t a common denominator there will always be asymmetry. Sometimes there will be symmetry, because the two source cases were fused together and we created something third. Today we’re going to encounter something like that. Meaning, today we’re going to meet a conceptual construction—well, actually, to be honest, I’m not completely sure that that’s what it is; there’s room to hesitate, but I’m putting it on the table for now as a question. So let’s look at the pages I gave you. There’s a Mishnah in tractate Shevuot that the later authorities (Acharonim) are very puzzled by, and they never really get out of the mess—and then suddenly a light bulb went on for me and I realized that they’re actually missing the point. There’s conceptual construction here, and it solves all the difficulties. The Mishnah in Shevuot says: Rabbi Meir says: There are things that are in the ground and yet are not like the ground, and the Sages do not agree with him. How so? “I handed over to you ten laden vines,” and the other says, “There were only five.” Rabbi Meir obligates an oath, and the Sages say: anything attached to the ground is like the ground. This is talking about a person who claims against his fellow: “I handed over to you ten laden vines”—laden meaning that they had grapes on them—“for safekeeping,” and the other says, “No, you only handed over five to me, not ten.” So apparently he admits to part of it. Not apparently—he admits to part of it. There is the oath of partial admission, and therefore Rabbi Meir obligates him to swear the oath of partial admission. The Sages say no: anything attached to the ground is like the ground. The claim is about the grapes, not the wood, and the grapes, although they are fruit, as long as they are attached to the vine they have the status of land. And the rule is that one does not swear concerning land—not only Torah oaths, really oaths in general are not taken concerning land. The dispute between Rabbi Meir and the Sages is that there are things that are in the ground and yet are not like the ground—that means grapes. Grapes are in the ground in the sense that they are attached to the vines, but the question is whether they are like land or not. On this Rabbi Meir disagrees. Rabbi Meir says they are not like land, that they have the status of movable property, while the Sages say not. Now there in the Talmud, on 43a, the Talmud says as follows: Rabbi Yosi son of Rabbi Hanina said: Here they are disputing grapes ready to be harvested. Rabbi Meir holds they are considered as though already harvested, and the Rabbis hold they are not considered as though already harvested. Meaning, the dispute is over the status of grapes ready to be harvested—grapes that are already ready, ripe, and I could in principle already take them off the vine. Meanwhile I haven’t yet managed to do that, I haven’t done it yet, but this is basically already standing for harvest. The question is whether in such a state we already view this as fruit detached from the vine. Right now the vine is only storage space, but they aren’t really considered attached to the vine anymore, as part of it. As long as they’re still growing, then yes, but once they’re ripe, then maybe no—or not. As long as they’re attached to the vine, then basically they’re attached. Behind all this lies the question: what is called attached to the ground? Does attached to the ground mean anything physically attached to the ground, or anything nourished by the ground, anything that still needs the ground? And that is the dispute—this is how Rabbi Yosi son of Rabbi Hanina explains the dispute between Rabbi Meir and the Sages. So apparently there is a tannaitic dispute here about the status of grapes ready to be harvested. Now, we know things like this from other places in the Talmud as well. For example, hair ready to be cut, or fingernails. The question is whether things like that—anything standing ready to be cut is considered cut—

[Speaker B] considered so, yes—anything standing ready to be harvested is considered harvested.

[Speaker C] Passages in Sanhedrin and elsewhere.

[Rabbi Michael Abraham] And in all those places they discuss whether things ready to be cut are no longer an integral part of the body. They grew on the body, but at a certain stage they’ve already reached the point where they stand ready to be cut, and the question is whether such things are considered attached or detached. The problem raised here by the medieval authorities (Rishonim) is that in the other passages it’s not presented anywhere as though there is a dispute about it. The Talmud says: grapes ready to be harvested are considered as though harvested—and that’s it. It doesn’t say there’s a dispute here between Rabbi Meir and the Sages, that there’s a tannaitic dispute. So how does that fit with what’s written here in the Mishnah, where the tannaim did dispute it? So there are medieval authorities who distinguish between grapes that still need the ground and grapes that don’t need the ground. Grapes that don’t need the ground—there, according to everyone, they are not like land; meaning, they are already considered as though harvested. And the dispute here is about grapes that still do need the ground a little bit—they need it, but not completely.

[Speaker C] And all the other examples are cases where they don’t need it—that’s the interpretive setup.

[Rabbi Michael Abraham] So they interpret all the other examples as cases where they don’t need the ground at all. That’s the simple approach. On the contrary, the main forced interpretation is really here, where they say that here it still does need the ground a bit—it’s not fully ripe. Various interpretive setups of this kind. Some make it into three levels of attachment, or three levels of dependence on the ground. And what all the medieval authorities who ask this have in common—and there are many of them—is that they see the dispute between Rabbi Meir and the Sages here in the Mishnah in Shevuot as a general dispute, a principled dispute dealing with the question whether something standing ready to be harvested—do we regard the potential as though it has already been realized for halakhic purposes? Is it already considered detached? This isn’t some dispute specific to this case. Rather, it’s a general dispute, and therefore they ask: wait, but in other passages you see differently. And then they give answers. The basic conception is that what we have here is really a general dispute. But the approach of Maimonides and Ri Migash is different. And again, as I’ve already mentioned, many times the source for unusual positions of Maimonides can be found in Ri Migash. Ri Migash was the teacher of Maimonides’ father, and so the novellae of Ri Migash were not always widely known—we only have them on very few tractates, and not everyone knows them. Sometimes it’s in the responsa of Ri Migash; we also have his responsa. But there are quite a few places where you see a very puzzling view of Maimonides, innovative or seemingly contradicting the Talmud. And with Maimonides, as is well known, it’s hard to understand how he read the Talmud, because Maimonides is a halakhic decisor. He doesn’t explain the Talmud according to his interpretation; he simply writes what the halakhah is. Now you have to figure out how that fits with the Talmud—you can speculate, but Maimonides himself doesn’t say. Ri Migash is a commentator, not a halakhic decisor. So in Ri Migash you can find explanations, and therefore it’s an advantage to look at this, and it’s not just ad hominem, yes, hanging on to a great tree—saying Maimonides is like Ri Migash so everything is fine. Rather, Ri Migash gives an explanation, whereas in Maimonides it appears only as some halakhic ruling over which we then have to rack our brains. So in this case Ri Migash argues—did I bring it here? Yes, here, the explanation is before you, Ri Migash, source number three: Rabbi Meir says there are things that are like land and yet are not like land; we established that this is speaking of grapes ready to be harvested. Rabbi Meir holds they are considered as though harvested, and therefore one swears concerning them, while the Rabbis hold they are not considered as though harvested, and thus they are like land and one is exempt. And the halakhah is in accordance with the Rabbis, since we follow the rule that the law follows the majority against the individual. The halakhah follows the Rabbis, that they are considered like land. So that’s even worse. Meaning, not only is there a dispute here, but as a matter of halakhah they are considered like land and not like fruit. And in the other passages it appears as something simple, that this is considered harvested. So Ri Migash says: and that is specifically regarding a bailee that we say grapes ready to be harvested are not considered as though harvested. Since he handed them over to him for safekeeping while attached to the ground, they are like land, because he did not hand them over to him for detachment. But one who sells his fellow grapes while they are attached to the ground, for the buyer to detach them for himself—since he sold them to him for detachment, and they have already reached the point of harvest—they are considered as though harvested, and we judge them as movable property in all respects, such as the law of price exploitation and oath law, where in many things there is a difference between movable property and land. If there is price exploitation—if he cheated him in the price—for land there is no law of price exploitation, and one does not swear concerning land. So for all those laws, we judge them as movable property and not as land. For we maintain that anything standing ready to be harvested is considered harvested, and anything standing ready to be fenced in, such as figs, is considered fenced in. And if they still need the ground and have not yet reached the point of harvest, then they are like land in every respect. See Bava Batra, chapter “The One Who Sells the Ship,” and so on. So in the end he only arrives at the question, but it’s clear that the question is the basis of everything he says. Meaning, he is basically resolving the question I raised earlier from the other passages, but differently from all the other medieval authorities. Ri Migash argues that the dispute between Rabbi Meir and the Sages is a dispute specific to this case. It’s not a general statement. Generally speaking, things ready to be harvested are considered harvested, and no one disputes this—not Rabbi Meir and not the Rabbis, everybody agrees. So what happens here? Here we’re dealing with the laws of bailees. So what is there in the laws of bailees? If you sell grapes while they are still attached to the vine, but you sell the grapes to someone, then since the grapes are ready to be harvested, those grapes are considered as though harvested. The practical difference would be for price exploitation, if he cheated him in the price, or for an oath, or all sorts of things of that kind. But here I didn’t hand it over to him as a sale; I handed it over to him for safekeeping. Right? “I handed over to you,” the Mishnah says, “ten laden vines for safekeeping,” yes? “And the other says: there were only five.” Meaning, the dispute is in the laws of bailees: did I hand over ten vines to you or only five vines? Ri Migash says that in the laws of bailees, grapes ready to be harvested are not considered as though harvested. And why? Because when I hand these vines over to a bailee, it’s obvious that my intention is for him to watch over them while attached to the vine. They were not handed over to him so that he should detach the grapes. When I sell the grapes, and the grapes are now attached, I’m saying to him: go detach your grapes—you bought them, now take them and detach them. So I handed them over to you for detachment. In that situation, grapes ready to be harvested are considered as though harvested. But if I handed them over to you for safekeeping, it’s the opposite. Your role is to prevent people from coming and taking the grapes; you’re guarding them so they won’t take them—you are supposed to make sure they are not harvested. So in such a case, grapes—even if they are already ripe and in principle ready to be harvested—their law is like land according to the Sages. Rabbi Meir says that even here they are like movable property, while here the Sages say this is like land. And this is a special law in the laws of bailees. The general law is that grapes ready to be harvested—even the Sages agree they are considered as though harvested. That is Ri Migash’s claim. Ri Migash’s words are very difficult in several respects. First of all, is the Mishnah here really talking about the bailees’ oath? “I deposited with you ten laden vines”; he says, “You deposited only five.” It’s pretty clear that it isn’t. True, the give-and-take is around a safekeeping transaction—that is, I handed something over to you to guard—but the oath being discussed here is not the bailees’ oath. How do I know? What is the bailees’ oath? The bailees’ oath—just a short introduction—there are three oaths that the Torah imposes. These are called Torah oaths. There is the oath of partial admission, where you claim one hundred and I admit fifty; there is the bailees’ oath, where something was deposited with me and it was subject to an unavoidable accident, yes, something happened for which I’m exempt; and there is the oath triggered by one witness. If there are two witnesses against me, money is extracted from me; if there is one witness against me, that obligates me to swear. These are the Torah oaths. There are rabbinic oaths, but we won’t go into that here. What is the bailees’ oath? The bailees’ oath is when I say, “I deposited some object with you, whatever it is; now bring it back.” I come and ask for it back. “It burned.” But you are a paid bailee—let’s say a paid bailee is exempt in a case of unavoidable accident. This was an unavoidable accident. So you’re exempt. But the Torah says that in order to be exempt, you have to swear. Why? What’s the idea behind it? The idea behind it is that basically everyone has a presumption of validity, and the burden is on the one seeking to extract from another. He deposited it with you and then went abroad. Why did he give it to you to guard? Because he isn’t around—he’s leaving. Right? He doesn’t know what’s happening in your house. You can sell him whatever story you want. It burned, it disintegrated, it was eaten, it disappeared, it was lost—I don’t know what. You can tell him anything. He has no way of knowing whether you’re lying or not. So just to be safe, they say to you: swear, so we can be sure you’re not lying. Even though strictly speaking you shouldn’t have had to swear because the burden of proof is on the one seeking to extract from another. But here, in this case, they nevertheless ask you to swear. That is the bailees’ oath. What happens if I say to you, “I deposited a certain item with you,” and you say, “What are you talking about? It never happened. You’re a liar.” Will there be a bailees’ oath here? No. Obviously not. How is that different from any claim that I make against someone? I come to a person—“What nonsense are you talking? I don’t know you at all.” The bailees’ oath is one of the clauses of a safekeeping contract. Meaning, if you undertook safekeeping and something happened that exempts you, the contract says that in such a case you have to swear. But that assumes there is a safekeeping contract between us. Within the framework of the safekeeping contract, if you want to be exempt, you have to swear in order to be exempt. But here you’re saying, for heaven’s sake, there was no safekeeping contract. I don’t know you at all, you’re just a liar. On what basis do you want to obligate me? You’re just making a claim, and I deny everything, and total denial is exempt from an oath. What does that have to do with the bailees’ oath at all? The fact that I present you as a bailee or sue you under the heading of bailees—fine, very nice. But you don’t admit at all that there was a safekeeping arrangement. You said: liar, I did nothing, I don’t know you. In such a situation there is certainly no bailees’ oath. It simply makes no sense to speak about the bailees’ oath in such a situation. This is the ordinary case of someone claiming against another and the other denies it—the burden of proof is on the claimant. On the one hand, there is the novelty that despite the rule that the burden of proof is on the one seeking to extract, if you admit part of it then you swear—we’ll talk about that later. But in a case like this it’s just a claim, and if you deny it then the burden of proof rests on the person making the claim. The bailees’ oath is where it’s clear that there was a transaction, and you’re only claiming that the transaction exempts you, because in a case of unavoidable accident you’re exempt. You’re an unpaid bailee, a paid bailee is exempt in an unavoidable accident. You want to be exempt, so the contract itself also says that in order to be exempt you have to swear. Of course this is a contract that the Torah writes; it’s not a contract the two of you wrote. But no matter—the Torah determines that this is the nature of a safekeeping contract. Okay? This reminds me of an article I once wrote on whether Jewish law is Hebrew law. And I argued that beyond the discussion, within Jewish law, about the nature of Jewish law and whether it really is legal in character, I argued that attempts to integrate Jewish law into the Israeli law books usually only move the law books farther away from Jewish law. There are a few examples of this, but one of the examples I brought—and the one around which I wrote the piece—was Hanan Porat’s law based on “do not stand idly by your neighbor’s blood.” There the situation before they legislated that law was very similar to Jewish law. Everyone understood that it was immoral not to offer help to a person in distress, but there was no sanction for it, because the law wasn’t a law prohibiting the act in a way that carried sanction. That is exactly the halakhic situation. There is a prohibition of “do not stand idly by your neighbor’s blood,” and there is no punishment in such a case—a prohibition without an action does not incur lashes. What happened after they legislated the law? Once you legislate it, you turn it from a moral prohibition—or just a prohibition—into something that carries a sanction, because what appears in statute also has punishment attached to it, and by doing that they of course moved the law farther away from Jewish law. Another example I brought there is imaginary, but suppose the most banal and prosaic thing I can think of is the laws of bailees. Not loaded with special religious ideologies—just the laws of bailees. What’s the problem with taking the laws of bailees from Jewish law and putting them into the statute book? What could be more natural than that? Excellent. Here you could adopt Jewish law without paying any price. People who don’t believe, or who aren’t committed to Jewish law—but usually here whenever there’s some price to pay and they want to take something, they don’t want to take on a religious system. Okay, but here it’s a contract—contract law. Just define the contract that way. Not only that, but you can even stipulate against this contract according to Jewish law; if you set a different contract, no problem, if you don’t want it. The only question is what the default should be. If you didn’t stipulate, then what are the mutual obligations? But I said that even there it isn’t true. Because part of the safekeeping contract is the oath obligation. So let’s say you exempt an unpaid bailee from theft or loss—not simply exempt; he’s exempt only if he swears that nothing happened, that he didn’t put his hand to it, that nothing improper happened. Now in court… or he won’t swear in the halakhic sense. So the moment you remove the oath element from the contract, who says Jewish law would exempt him from payment at all? If he doesn’t swear, he has to pay. Now if the law adopts the laws of bailees from Jewish law, what will happen is that it will exempt an unpaid bailee from theft and loss without obligating him to swear. But in Jewish law that’s not correct—he’s exempt only if he swears. So I’m saying—this just came to mind, it’s not our main topic—but it reminded me that… In short, what I want to say is that the oath obligation is part of the safekeeping contract.

[Speaker D] Meaning, the safekeeping contract defines the mutual obligations: payments, if there are any, if he’s a paid bailee; obligations, when you are liable and when you are exempt; and the oath. That’s another element included in the safekeeping contract.

[Rabbi Michael Abraham] And because of that, the moment there is a dispute whether there was any contract at all—the depositor, or the person claiming he deposited, says there was a contract and that he deposited an item; the other says to him, “It never happened, you didn’t deposit anything with me, I don’t know you”—then obviously I can’t say to him, “Look, the contract obligates you to swear—you’re a bailee.”

[Speaker C] I’m not a bailee—prove it.

[Rabbi Michael Abraham] First of all, I’m a bailee, so you want to obligate me to take an oath, right? So when I go back now to the Mishnah here: when I claim against you, say I tell you, “I deposited with you ten grapevines.” Okay? And you say, “What are you talking about? Nothing of the sort ever happened, you never deposited anything with me.” Would you be liable for the bailees’ oath? Of course not. Not at all. Now, with partial admission it’s the same thing. Even with partial admission, if I say to you, “I deposited with you ten loaded grapevines,” and you say, “You only deposited five with me, not ten” — then over what exactly would I obligate you to take an oath? Over what am I obligating you to swear? I obligate you to swear over the five that you deny; over the five that you admit — what is there to swear? You’re giving them back to me. We’re talking about the five that you deny. But regarding the five that you deny, you’re not saying they burned while in your possession. If you were saying they burned while in your possession, that would be the bailees’ oath. Rather, you’re saying, “Nothing of the sort ever happened; you gave me only five, you never gave me ten at all.” So with regard to the extra five, these additional grapevines, I’m not admitting at all that there was a contract of safekeeping concerning them. So why in the world should there be here… why should the bailees’ oath be relevant here? It’s not the bailees’ oath. So what oath is this? The oath of partial admission. There is an oath of partial admission here; like any transaction, a safekeeping transaction too — or a claim about a safekeeping transaction — can generate an oath of partial admission if you admit part of it. I’ll say more than that: if this were talking about the bailees’ oath, then the Talmud… the Mishnah should have set it up in a case unrelated to partial admission: “I deposited with you ten grapevines,” and you say, “Nothing of the sort ever happened” — take an oath. Or don’t take an oath, depending on whether this is considered land or not land; that’s the dispute between Rabbi Meir and the Sages. Why did they get into a situation of partial admission here? Doesn’t that indicate that the Mishnah is really talking about the oath of partial admission, not the bailees’ oath? If it were talking about the bailees’ oath, why didn’t they say, “I deposited with you ten grapevines,” and you say, “Nothing of the sort ever happened”? Why do they have to bring in the whole business of five yes and five no, and what relevance does that have? We’re discussing the bailees’ oath. There is a discussion in the Talmud, Rami bar Hama, whether the bailees’ oath also requires partial admission and partial denial, but we won’t go into that; as a matter of Jewish law it does not require it. So where did you get that this is the bailees’ oath, Ri Migash? Ri Migash says it’s because this is in the laws of bailees. What does he say? “Since they were given for safekeeping while attached to the ground”? Yes. That it’s basically a law from the laws of bailees. No… no no… I think it’s… he says that this is specifically with respect to a bailee, but not because it’s the bailees’ oath; rather because with a bailee, the grapes are… right, I think that with Ri Migash you actually could get out of this. Because with Ri Migash you could say he isn’t talking about the laws of bailees; he’s talking about the nature of the claim. Meaning, my claim is that I gave you grapevines for safekeeping. What I’m demanding from you is an oath of partial admission, not the bailees’ oath. But since I gave you the grapevines for safekeeping, you can’t say that these loaded grapevines are grapevines standing to be harvested. After all, as a bailee you’re supposed to make sure they aren’t harvested. Okay? It’s not perfectly smooth. It’s not perfectly smooth, because after all, you swear concerning those five about which you claim “Nothing of the sort ever happened.” So according to the plaintiff’s claim, he did give you the additional five. But you say they were never given to you at all. Now the question is: which side determines whether these grapes are considered standing to be harvested or not? After all, the bailee is claiming there were no grapes at all. There were no such grapes. But since the plaintiff says to him, “I gave you these grapes for safekeeping,” that too determines that these grapes are considered attached, according to the Sages, because he himself claims he gave them for safekeeping. Why do we specifically follow the plaintiff and not the defendant? There’s a simple answer to that. Because the determination that these grapes are attached grapes — in whose favor does that work? In favor of the defendant. Since if this is land, then he doesn’t swear over it; he is exempt from the oath. We are essentially exempting him from the oath because these grapes are considered land. And what we’re really saying is: you, the plaintiff, want an oath? According to your own position, he doesn’t need to swear. We don’t administer oaths on land. We derive that from a general-particular-general exposition. What about the fact that a bailee swears as a matter of logic? No no, the Torah obligates him in an oath. I only explained what lies behind the obligation; I explained the consideration that… yes, the consideration is what stands behind the Torah’s obligation, but the Torah imposes it. So then according to the Rabbi’s explanation, the bailees’ oath should really have been required by logic. Maybe yes, maybe no. It’s not certain that that logic would have been enough to impose an oath obligation. The Torah imposes it, but there are logical considerations that I can explain after there is a verse — then I understand that this is what the verse means. The question is whether I would have said it without the verse; not always. Fine, there is room to say I’d need a logical basis; not sure, maybe yes, maybe no. In any event, for our purposes: why do we choose specifically the plaintiff’s point of view? Because the plaintiff is the one demanding the oath, saying, “Swear to me.” So he says, “What do you want? According to your own position, this is land and I don’t need to swear to you; what do you want from me?” So that works. Okay? Look at Maimonides in his commentary to the Mishnah; that’s your next source. Maimonides writes as follows: “The dispute between Rabbi Meir and the Sages is about grapes standing to be harvested, and Jewish law follows the Sages. And specifically if he gave them over in the framework of safekeeping,” and here he follows Ri Migash. “But in matters of buying and selling, and the laws of overcharging, and partial admission, if the main claim was not in the framework of safekeeping, then the rule in Jewish law is that they are like movable property.” I underlined that, you see? In Maimonides’ commentary to the Mishnah, these are certainly words that require explaining along the lines you suggested, and one could also say that this is talking about the bailees’ oath. But in Maimonides it seems quite clear that he really is not talking about the bailees’ oath. He is talking about a claim grounded in safekeeping — that’s what he says. “If the main claim was not in the framework of safekeeping” — meaning, the question is: by virtue of what am I making my claim against you? It’s not the question of which oath I’m demanding from you. I’m claiming against you that I gave you things for safekeeping. That’s what determines whether this is land or not land. If that’s so, then what Maimonides writes in his commentary to the Mishnah very strongly supports this suggestion in Ri Migash. And if so, then this really is not the bailees’ oath but the oath of partial admission. Except that this is Maimonides in the commentary to the Mishnah. But in the Mishneh Torah, Maimonides seems to follow the straightforward reading of Ri Migash. Maimonides writes in the Laws of Hiring, chapter 2, law 4 — you see? After the commentary to the Mishnah: “If one gives his fellow something attached to the ground to guard, even if they were grapes standing to be harvested, they are considered land in the law of bailees.” First of all, the terminology: “they are considered land in the law of bailees.” Meaning, what relevance does land have in the law of bailees? In the laws of bailees it is written that because there is also no oath on land, there is also no safekeeping liability for land. Anything subject to an oath is subject to safekeeping liability; anything not subject to an oath is not subject to safekeeping liability. Therefore it is clear in Maimonides: Maimonides is talking about the bailees’ oath. Maimonides is not talking about a safekeeping claim, as implied by the commentary to the Mishnah and as you wanted to resolve it in Ri Migash. Since it could fit in and could fail to fit in, here in Maimonides it is clear that it does not work. Another proof of this: if this were the oath of partial admission, then this law should have appeared in the laws of claims and defenses, not in the laws of hiring. The laws of hiring are the laws of bailees: renter, borrower, deposit, hiring — all the laws of bailees. According to your suggestion, this law belongs in the laws of claims and defenses, not in the laws of bailees. Rather, when you claim against someone, “I gave it to you to guard,” then in the laws of claims and defenses it turns out that his oath of partial admission he does not have to swear, because it is land. So the laws of the oath of partial admission appear in the laws of claims and defenses, not in the laws of bailees. In the laws of bailees appear the laws of bailees. But that too is clear from Maimonides’ wording: “they are considered land in the law of bailees,” not “considered land in a safekeeping claim.” If it were a kind of claim, then in the laws of claims and defenses Maimonides should have distinguished: if he claims against him by virtue of safekeeping, then it is considered land; if he claims against him by virtue of a loan or a sale or whatever, then it is like movable property. But all of that would belong in the laws of the oath of partial admission. It should not have appeared in the laws of bailees; it should have appeared in the laws of claims and defenses. Therefore in Maimonides it is clear that this is not correct. Maimonides claims that what we’re dealing with here is the bailees’ oath and the laws of bailees. And then all the questions I asked before come back: meaning, if that’s so — if this is the bailees’ oath — first, in the Mishnah, the case in the Mishnah is not the bailees’ oath. After all, regarding the extra five grapevines, I’m not admitting at all that there was a contract of safekeeping over them. Second, why does the Mishnah… So as for Maimonides, it remains very, very difficult. Sorry? There’s another question here. What — according to how the Rabbi explains this, what does “they are considered land in the law of bailees” mean? Exactly like land: there is no oath on them, no contract of safekeeping on them, nothing. What do you mean — why is there no contract of safekeeping on them, he isn’t liable for anything. What, is there a law of safekeeping for land? Nothing; here he is exempt. Maimonides says regarding negligence — that’s a dispute between Maimonides and the Raavad. Maimonides innovates that with regard to negligence, even for land there is a law of negligence, because Maimonides said that anyone who is negligent is a damager. So essentially, a bailee who was negligent is liable under the laws of damages, not under the laws of a bailee. So that would apply even to land. But liabilities of theft and loss — theft and loss, one needs a bit to define what theft and loss means in land — but other liabilities that are not negligence would not exist. According to the Raavad, even negligence liabilities do not exist, because the Raavad argues that even the liability for negligence in the laws of bailees is a contractual liability and not a liability under tort law, not under damages. Wait, then if so, maybe Maimonides here… then this law of Maimonides actually does fit with the explanation. The statement was that in the laws of claims and defenses, if we… if the plaintiff partially admits, then according to the Sages we consider the grapes as land because that is what the bailee was given — that’s what the one who gave them for safekeeping intended, that they not be harvested, and therefore this will be considered land. Now according to that same principle — and from that we learned the principle that one who gave to his fellow, that what one gave — these grapes are considered land. Now I’m saying: so not only with regard to the laws of claims and defenses, but also with regard to bailees, it will be like that, according to the same principle. But Maimonides doesn’t bring it there. Maimonides brings it in the laws of bailees? No, he says that maybe in the laws of bailees he learned it from that same principle. He doesn’t bring it in the laws of bailees. But not in the laws of bailees. After all, the oath here is not the bailees’ oath; this is not the laws of bailees. I’m saying from that same… the principle is that if you gave the trees with fruit for safekeeping, since people — the bailee is not supposed to pick the fruit. How do you know? How do you know that? Because you are a bailee here. You know it from the Mishnah here, and the Mishnah here is talking about the oath of partial admission. I said — so that I learn from the Mishnah here. I see that the Mishnah said with regard to the oath of partial admission that if you give land with fruit, the fruit are considered part of the land because you did not give them to be guarded [as separate produce]. That’s what the Mishnah said regarding partial admission. Now from that I learn the same principle. Just as this was said regarding partial admission, since the principle here concerns the status of the fruit, it makes sense that this principle would work in the laws of bailees too. Because we are still speaking here about land; meaning, I still see that land given for safekeeping — we treat the fruit as part of the land. So just as we treat it that way before the safekeeping and then it enters the laws of partial admission, so too it can work after the safekeeping. That’s an interesting suggestion; I hadn’t thought of it. The point is that when Maimonides brings the law of the Mishnah — read the next Maimonides, Laws of Claims and Defenses, chapter 5, law 4: “If one claimed grapes standing to be harvested and dry grain standing to be cut, and the defendant admitted part and denied part, he swears regarding them as with other movable property, provided they no longer need the ground, for anything standing to be harvested is as though harvested with respect to denial and admission. But if they still need the ground, then they are like land in every respect, and one does not swear concerning them except a rabbinic hesset oath.” Now, if you were right, then Maimonides should have added here: “But if he gave it over for safekeeping, then he is not liable for the oath of partial admission.” Right? Wait a second, let me read it. “If one claimed grapes standing to be harvested and dry grain standing to be cut, he swears regarding them as with other movable property.” Ah, “claimed” — I understand, it’s about the claim. “Provided they no longer need the ground, for anything standing to be harvested is as though harvested with respect to denial and admission. But if they still need the ground, then they are like land in every respect, and one does not swear concerning them except a rabbinic hesset oath.” So what’s the question — why didn’t he qualify his statement here? First of all, regarding claims and defenses he should have — after all, first bring the law that is written in the Mishnah, not what you learned from it. What is the law written in the Mishnah? What is written in the Mishnah is a law from the laws of claims and defenses: if you… make a claim in the context of buying and selling, then grapes standing to be harvested are as though harvested. And if you make a claim in the laws of bailees, then the grapes are like land. That does not appear in Maimonides. It seems that he did not understand this Mishnah at all as a Mishnah about partial admission; on the contrary, he understood it as a Mishnah about the bailees’ oath. And conversely, he says: if you have a case of partial admission unrelated to bailees, all right, that too exists — but it has nothing to do with the Mishnah. That he brings in the Laws of Claims and Defenses. There indeed, in the Laws of Claims and Defenses, we know that grapes standing to be harvested are as though harvested, but that is unrelated to the Mishnah. The law of the Mishnah he brings in the Laws of Hiring, chapter 2, law 4. But there he does not bring the case of partial admission; there he speaks about the law of bailees. So this reading of the Mishnah according to Maimonides does not seem plausible to me. Now the Tosafot Yom Tov on this Mishnah — and also several later authorities, at least some of them — understand that Maimonides really did speak about the bailees’ oath. I think they are right about that. In short, Rabbi Akiva Eiger remains with it as requiring further analysis, but they are right about that. Look at the Tosafot Yom Tov: “And the Sages say: anything attached to the ground…” The Bartenura wrote: “And Jewish law follows the Sages, specifically in the law of bailees.” And so too Maimonides wrote: “And Jewish law follows the Sages when he gave them over in the framework of safekeeping.” Up to here. “And if you ask: why do we need partial admission?” So why did they establish there that this is “I gave you ten grapevines and you admit five” in the laws of bailees? “After all, we maintain that from there we learn that partial admission is required.” I wrote at the beginning of the chapter under the heading “and the admission” that we shift it to the section “If you lend money,” which really deals with loans, not safekeeping, “and it is written in the section of bailees because of the mixing of sections” — the verse is written in the middle of the section of bailees, but we learn that it really deals with loans generally, not the laws of bailees; mixing of sections. “And one can say that they were not completely uprooted from this section,” and he explains why they were not completely uprooted from this section, “but this explanation does not accord with the opinion of Maimonides, who explicitly ruled in chapter 2 of the Laws of Hiring that none of the bailees requires partial admission.” I explained this with Rami bar Hama — there is a view in the Talmud that even the bailees’ oath requires partial admission, but Maimonides does not rule that way. So once again the question returns: why did the Mishnah establish it in a case of partial admission if this is the bailees’ oath? Yes: “If so, why did our Mishnah teach ‘and he had only five’? It should have said ‘I have only five,’ for even if he denied everything he would still be liable, yet we taught ‘you gave me’ — which is partial admission.” His big problem is: I don’t understand at all. But that’s not even correct. Whether he denies everything or admits part, the bailees’ oath is not relevant here, because he is denying the very existence of the transaction; he isn’t saying, “It burned and therefore I’m exempt.” In such a situation there is no bailees’ oath. Later on he already brings what the other medieval authorities (Rishonim) said, and later one could also read it as referring to the oath of partial admission but in a bailee’s claim; but in the first part it is clear that he is talking about the bailees’ oath. And indeed Rabbi Akiva Eiger challenges him; he says, what sense does it make to talk in this Mishnah about the bailees’ oath? It makes no sense at all. Therefore Rabbi Akiva Eiger argues that in Maimonides it is clear that this is talking about the oath of partial admission and not the bailees’ oath, because otherwise it simply doesn’t fit: in a situation where I deny the very existence of a contract of safekeeping there is no bailees’ oath. Only if within the contract I say to you, “It burned,” and therefore I am exempt — then I need to swear. How can you explain this Mishnah at all as dealing with the bailees’ oath? It doesn’t fit. On the other hand, the Tosafot Yom Tov is right: in Maimonides it is very clear that he is talking about the bailees’ oath and not partial admission. How that fits into the Mishnah — excellent question. The Shakh also discusses this at length; in short, everyone here gets tangled up in this issue. The Shakh says outright: Maimonides certainly is not accepted here in practice; it cannot be, Maimonides made a mistake, because in this Mishnah it cannot be the bailees’ oath. The Shakh too understands that in Maimonides it says the bailees’ oath, like the Tosafot Yom Tov, but he says that cannot be, because such a thing does not exist as a bailees’ oath here; therefore clearly this Maimonides is not normative Jewish law — he got confused here. Okay? The Tosafot Yom Tov says that Maimonides understands this as the bailees’ oath, and Rabbi Akiva Eiger says to him: that cannot be what Maimonides said; you are mistaken in your understanding of Maimonides. But the Shakh agrees that Maimonides said it like the Tosafot Yom Tov, only he says it cannot fit the Mishnah, and therefore he says this Maimonides is not accepted in practice. Another question — all this is just preliminaries; in a moment I’ll explain what I want to do with it. Another question raised by several medieval authorities: how can the oath of partial admission apply here in the Mishnah? And now the question goes in the opposite direction: it is hard to believe this is partial admission. Earlier I said it is hard to believe this is the bailees’ oath, but the medieval authorities ask: it is hard to believe this is the oath of partial admission. Why? There is a rule in partial admission called “here it is” — heilekh. Meaning, if you claim one hundred from me and I admit fifty and say, “Here, take them,” and regarding the other fifty I do not agree — there is no oath. Why? Because I have already discharged to you those fifty. Regarding the remaining fifty, you claim fifty and I deny everything. There is no partial admission. Partial admission must be followed by giving what you admitted. That is called heilekh. The Talmud says in Bava Metzia, at the beginning of Bava Metzia, that things attached to the ground are always considered heilekh. Because what is attached to the ground is already here. I don’t need to give it to you. The moment I admit it, it’s yours. It’s as if I gave it to you. Because to give it to you is only to admit that it is yours. There is nothing here to hand over. It remains in the place where it is. The whole dispute is only about what we claim, to whom it belongs. The moment I say it is yours, that means I have handed it to you. So land is always heilekh. Now, if grapes standing to be harvested are as though harvested — let’s say they are as though harvested, fine — would partial admission in such grapes obligate an oath? Obviously not. Because what matters here is not whether they have the legal status of land, but the fact that they are physically attached to the ground. Why should I care whether legally they are considered harvested? In reality, the grapes are attached to the ground. The moment I said these grapes are yours, I gave them to you. So here it does not depend on whether legally I view these grapes as harvested or not. It depends on a factual question: are they attached to the ground? If they are attached to the ground, then this is heilekh. So how can an oath apply here? The oath of partial admission does not apply here. That is the question of the medieval authorities. And someone there played around a bit, saying maybe to bring them to him — as if when he gave them to him, then he needs to return them to him physically. But why? They remain where they are; they are where they are. I only need to admit that they are yours, just like actual land. With actual land too it is the same thing. What is the difference between grapes and land? So you’ll say that for monetary law this is not land, meaning with regard to monetary law it is detached from the land. Obviously. But physically it is attached to the ground. And what matters here is whether I gave it to you or not; that is not a legal question. Physically. And physically the grapes are attached to the vine. Now, once they are here, and they are located here, not in my house, they are here in the very place they are. And once I admitted it is yours, it is already with you. It is not lacking further delivery; rather, once I admitted it is yours, it is already yours. So there would be a rule of heilekh here even according to the view that grapes standing to be harvested are as though harvested. That does not matter, because physically they are attached to the vine. Why should I care what their legal status is? Okay? Good. What I want to argue is the following. Maimonides is talking about the bailees’ oath, not the oath of partial admission. And the bailees’ oath does apply in the Mishnah. And precisely for that reason the Mishnah discusses a case of partial admission. These two questions answer one another. But in order to say that, I need an introduction. Why does the Torah obligate the oath of partial admission? I explained the bailees’ oath earlier. Why does the Torah obligate the oath of partial admission? You claim one hundred from me, and I admit fifty and deny fifty. So they tell me: the fifty you admit, pay; and for the fifty you deny, swear. Why? The burden of proof is on the claimant. You want another fifty from me? About those fifty I say no. After all, when I deny everything I am exempt, right? Why? Because the burden of proof is on the claimant. Now I am denying fifty, not everything. So regarding those fifty, let you bring proof. Why do I need to swear? So the Talmud in Bava Metzia brings there a statement of Rabbah explaining why the Torah imposed the oath of partial admission: because there is a concern that he is trying to evade payment, and therefore he admits only part, and all kinds of things like that. There is a big question how to understand the Talmud there. Usually people understand the Talmud there as discussing why the Torah obligated the oath of partial admission. Then it explains that there is migo, and migo because of brazenness, and all sorts of complications — we won’t go into it now; it’s a complicated sugya. I think people do not understand that Talmud correctly. The Torah obligates the oath of partial admission entirely unrelated to migo or anything like that. The Torah obligates the oath of partial admission because even I admit that there was a loan, and the only dispute is over the amount of the loan. You say one hundred, I say fifty. Once I admit there was a loan, and the whole dispute is only over the amount of the loan, I am basically in a defensive posture. If someone claims something from me — “I don’t even know you, what do you want from me? Bring proof so we can even begin to argue. You prove there is any basis at all for the claim.” But here you cannot say there is no basis for the claim, because it is clear that there was a loan transaction between us. You lent me one hundred — sorry, you lent me — and you say it was one hundred, and I say it was fifty. So there are some grounds connecting you to the matter. You didn’t just make this up out of thin air and pounce on an innocent person. Maybe you are lying, maybe not. Of course the burden of proof still remains on you. You won’t get money without bringing proof. But for additional assurance, they imposed on me the obligation of an oath, because nevertheless I am already somewhat in a defensive posture. It is not like someone says to another person, “I don’t know you at all, there was nothing.” Then you need to bring proof that it has anything to do with me and that there is some footing for the claim. But here there is footing, because I admit it. I admit there was a loan; we only dispute the amount. So here the Torah says: look, true, he is the one seeking to take money, and the burden of proof is on him, he won’t get the money without that — but I want some assurance from you too; swear, just to be safe. Nevertheless, since there was a loan. Or in other words, let me formulate it like this: once you are in some sort of defensive posture, although you are the possessor and therefore the burden of proof is on the claimant, still if you are a possessor who is already in a somewhat defensive posture, then we require you to swear. You will win the case, because the burden of proof is on him; if he brings no proof, he won’t get the money. But in order to win, we ask you to swear. That, in my opinion, is the idea of the oath of partial admission. And what Rabbah says there — Rabbah there is only asking why we don’t exempt him, since he has a migo that he could have denied everything. He is not asking why he is obligated. He is obligated because there are grounds to the matter; there was a loan here; we dispute the amount — that’s what I explained before. What Rabbah asks there at the beginning of Bava Metzia is why we do not exempt him, since he has a migo that he could have denied everything. And to that he says: this is a migo of brazenness, or whatever, and therefore the migo does not exempt him. Rabbah is not asking there why he is obligated; Rabbah is asking why we do not exempt him. Why is he obligated? He is obligated because he is defending himself; anyone who is defending himself must swear. At least swear. Okay? It’s like the difference between my saying “Nothing of the sort ever happened” and my saying “I paid.” When I say “I paid,” I have essentially admitted that there was a loan, I’m only saying I paid it back. So it’s not that the other person is just pouncing on me with no basis whatsoever. Then there is room to say: look, we’ll still give you something in hand — we will exempt you, but swear. Meaning: let us be comfortable with this ruling. If he is just pouncing on someone and there is no indication that he is connected to the matter at all, then we will give him nothing unless he brings proof. But if I am defending myself, then it is different. Okay? What did I say about the bailees’ oath? Why does the bailees’ oath not fit the Mishnah? The bailees’ oath doesn’t fit because if I come to someone and say, “Look, I deposited a cow with you for safekeeping,” and he says, “Nothing of the sort ever happened, I don’t know you,” there is no bailees’ oath. Why? He is not defending himself in any way; I have not proved any connection to the matter; there is no basis at all for the judges to say, “Gentlemen, there is something to investigate here.” Nothing. Why are you just pouncing on someone? Okay? But if I pounce on him and say, “I deposited two cows with you,” and he says, “No no, it was one cow, and there was a deposit” — a deposit, not a loan, yes? — “but one cow, not two,” then he will be liable for an oath. But he will be liable for the bailees’ oath, not the oath of partial admission. Not just the oath of partial admission. Why? Because from the oath of partial admission — and here is the conceptual construction — from the oath of partial admission what we learn is that a person who admitted part is already in a defensive posture even regarding the rest. Right? He can no longer say to him, “Listen, until you bring me proof, I’m not even talking to you.” This is already something where you need to defend yourself; it is no longer something you can just wave away. You have to swear; you have to defend yourself. Okay? Now let’s look at bailees. I said why here there is no bailees’ oath: because he says to the other guy, “I don’t know him at all, nothing of the sort ever happened, what do you want from me?” Not true — he admitted part of the safekeeping. From the oath of partial admission we learn that also regarding the second part he is already in some sort of defensive posture. A bailee in a defensive posture is liable for the bailees’ oath. A bailee who denies the whole matter and says, “Nothing of the sort ever happened” — why is he exempt from the bailees’ oath? Because he is not in a defensive posture at all. What happened? But from the oath of partial admission we learn that if you admit part, then regarding the rest too you are in a defensive posture. So I can apply this to a safekeeping claim as well. Here too in a safekeeping case, if you had claimed against me and I had said, “Nothing of the sort ever happened,” then you had not proved at all that there was a contract of safekeeping; how do you want to make me swear? But here I am admitting there was a contract of safekeeping; we only dispute the scope of the safekeeping, how many items were deposited with me for safekeeping. So once that is so, then also regarding the five that I deny, I am already in a defensive posture. We dispute how many objects were delivered to me. A bailee in a defensive posture is liable for the bailees’ oath. Therefore in the Mishnah — there could also be an oath… there would also be an oath of partial admission here, but there would also be the bailees’ oath. And now why is that important? Why would there be an oath of partial admission? Ah — exactly, that’s why it’s important. Because from the side of the oath of partial admission there would be no oath. Exactly. I’m saying that on the conceptual level, such a situation obligates both the bailees’ oath and the oath of partial admission. The medieval authorities asked: but the oath of partial admission here — does it even apply? It’s heilekh. You are right. There is no oath of partial admission here; it is the bailees’ oath. So we asked: first, I asked, how can the bailees’ oath apply here if he denies the additional five? No — he denies them, but he still has to defend himself because he admits the other five; so even regarding the five he denies, he is already in a defensive posture. But more than that: why did they establish it in a situation where he admits part and denies part? After all, the bailees’ oath also exists when he denies everything. No, because here when he denies, he says “Nothing of the sort ever happened.” Because he admitted part, he will be liable for the bailees’ oath, not the oath of partial admission. This is a classic conceptual construction. It’s a conceptual construction, because what am I saying? I am essentially creating here an oath that is the sum of two Torah oaths: the oath of partial admission and the bailees’ oath. What am I really saying? The bailees’ oath is the oath of a bailee who is defending himself. A bailee who says, “Nothing of the sort ever happened” is not a defending bailee; he does not have to swear. A bailee who is already in a defensive posture — “Look, it burned in my possession; I’m not at fault; I’m exempt” — you are already defending yourself, so swear; you need to swear. Meaning, this is what the bailees’ oath taught me: a bailee who is defending himself must swear. What did the oath of partial admission teach me? That if someone admits part, then even regarding the part he denies, he is defending himself. Exactly. So once I see that the bailee admitted part and denied part, from the oath of partial admission I learn that regarding the part he denies he is in a defensive posture, and the bailees’ oath teaches me that a bailee in a defensive posture is obligated in an oath. So why does heilekh exempt him if he is in a defensive posture? What? Why does heilekh exempt if he is still in a defensive posture? It doesn’t exempt him. Exempt him from the bailees’ oath? In the oath of partial admission? Heilekh? Yes. That’s what I’m saying. If heilekh exempts him from the oath of partial admission — excellent distinction. No, the question is why heilekh exempts from the oath of partial admission. Does heilekh exempt from the oath of partial admission because he is no longer in a defensive posture at all, or does it exempt him for other reasons? We’ll see in a moment. My claim is that heilekh does not exempt for that reason. He is still in a defensive posture and nevertheless is exempt. And the proof is that even if he gives the half, he still admitted that there was a transaction between them. So that proof I mentioned earlier — that he admitted there was a transaction and the dispute is only over the scope of the transaction — that remains true even in heilekh. So we are forced to conclude that heilekh exempts for other reasons, not because there is no defensive posture regarding the rest. There is a defensive posture regarding the rest. Therefore I say that the exemption of heilekh is a specific exemption from the oath of partial admission. It is not an exemption from the bailees’ oath. But if it’s a specific exemption, then you need to learn it from some verse, some… and indeed he learns it; he learns the heilekh rule from a scriptural juxtaposition. Heilekh isn’t some kind of migo or something, like “since I could have…” Not “since”; he actually does it. Not “since.” Meaning, he gives it to him. He says heilekh — he gives it now. Of course, I’m already paying. That’s why people ask whether there is also a migo when you can do heilekh. If you don’t actually do heilekh, you still have a migo that you could have done heilekh. And then they say no, maybe you don’t have the money. So maybe you don’t do it because you don’t have the money right now. Then you couldn’t have done heilekh right now, so there is no migo. I’m talking about a case where he actually does heilekh, not where he has a migo that he could have done it. Yes, once he does heilekh now, then it’s considered full denial? That’s why he is exempt. The oath of partial admission was innovated only for partial admission, not for full denial. But the idea that he is in a defensive posture regarding the rest remains. Because the logic of defensive posture exists even in heilekh. But if you say he is exempt because it is full denial, then say the same thing here — that he is fully denying the safekeeping. Meaning, just as he fully denies… What difference does it make if he fully denies? If he fully denies the safekeeping, he is liable for the bailees’ oath if he is in a defensive posture. For example, if he says, “Everything burned.” He is also denying everything. And since he says it burned — not “Nothing of the sort ever happened” — then he is denying everything but he is defending himself, in a defensive posture of total denial. This is not “Nothing of the sort ever happened”; this is “I paid” or “yes, but I am exempt.” It is not “Nothing ever happened.” Fine? Someone who says that too is liable for an oath. So also regarding half, the same thing. True, he denies, but he denies from within a defensive posture. In that situation he has to swear. And then everything is resolved. You don’t need anything else — all the “requires further analysis,” and the Shakh throwing out Maimonides and saying his ruling isn’t accepted, and all the questions on this Mishnah: how can it be the bailees’ oath at all, and if it’s the bailees’ oath then why establish it in a case of partial admission? What does that have to do with anything? The bailees’ oath doesn’t require partial admission. The whole business falls away. Everything becomes completely smooth. Why? Because we understand that the Mishnah is really dealing with a kind of oath that is a fusion, yes, between the oath of partial admission and the bailees’ oath. This is a conceptual construction. We are essentially creating a third concept of oath that combines the two. Yes, but in heilekh — why did I understand in the bailees’ oath why heilekh is exempt? If the first time he gives, then regarding the second half it’s full denial. Right. I said earlier — so is he not in a defensive posture? No, he is. So you don’t say… No, that’s what I answered Uri before. No, I am. I am fully denying in a defensive posture. So why are you exempt? From partial admission? Yes, because the Torah obligated only in partial admission. That’s what I said. If the exemption of heilekh were because I am considered full denial in every sense, then you would be right. What I wanted to claim — and logic says so too — logic says that if I gave you half, then I am not in a defensive posture? After all, I admitted there was a transaction. We only dispute its amount, even though I gave you half. So the story was: why, why are you exempt? Why in partial admission…? Once you fully deny, you are exempt, but the idea still remains; meaning, the defensive posture itself still exists. And therefore regarding the bailees’ oath, if you gave half, you will swear — the bailees’ oath. And now actually, I said at the beginning that in this example there is room to discuss — I said that in conceptual construction, unlike in a common denominator, there is not necessarily symmetry between the two source categories. Because if I ask myself: what is the oath that I am swearing here — the oath of partial admission or the bailees’ oath? Here I assume it is the bailees’ oath and not the oath of partial admission. Right? Because otherwise there would be the exemption of heilekh here. You assume asymmetry. Right, so here too I assume there is asymmetry, and that’s fine; we said that when there is conceptual construction, as we saw also in the previous examples, there is asymmetry. Okay? So here too, I said that at first I thought this would be symmetrical, but I think that here too in the end it is not symmetrical. Rather, what happens is that this is really the bailees’ oath. True, here partial admission — meaning, partial admission plays a different role from the assisting source category in the two examples we saw before. In the two examples we saw before, both in winnowing with the wind assisting him and in fire, in the conceptual structure of fire, it only came to tell you: don’t be bothered by the involvement of the wind; the involvement of the wind does not exempt — it is only a kind of side assistance, yes? Here it is not side assistance. Here you really need partial admission in order to obligate; it doesn’t just remove some side problem. Rather, partial admission reveals to you that regarding the rest — the part you deny — you are still in a defensive posture. But still, in the end, the oath I swear here is the bailees’ oath. It is the bailees’ oath, but then again I think that was why my intuition was that this really is a symmetrical case. The asymmetry here is not for a logical reason. It is not because what I swear now belongs more to the bailees’ oath or more to the oath of partial admission — after all, it would also have belonged here to the oath of partial admission, only there is an exemption in the oath of partial admission because heilekh is exempt, that’s all. It is just because of a specific rule in the oath of partial admission. But on the logical level, both oaths play a completely symmetrical role as source categories. I really do make a symmetrical fusion of them both. In that sense, this is unlike the two previous examples, because the exemption there — by virtue of which the oath is ultimately considered the bailees’ oath and not the oath of partial admission — is not because it really resembles the bailees’ oath and the oath of partial admission merely removed some problem for me, like the involvement of the wind in those examples. No. The oath of partial admission contributes an essential layer to the construction of this new oath. The reason there is no oath of partial admission here is that in the oath of partial admission there is an exemption of heilekh, that’s all. Because of a specific rule that exists in the oath of partial admission. But the logical status of the oath of partial admission is completely symmetrical, okay? And therefore in that sense this really is a conceptual construction that is symmetrical on the logical level — unlike the examples we saw, which were asymmetrical, because there the second source category really just removed an obstacle. Here the second source category adds a positive layer to the construction of this new oath. This new oath is the sum of two things that really play the same role; only together they create the case, the oath. It’s more symmetrical, though not completely, since it is the bailees’ oath. No, but on the logical level it is symmetrical; this is a third oath. No, it is a third oath that is a composite of the two source categories, a symmetrical composite. The only reason it is ultimately considered the bailees’ oath is not because of asymmetry in the logical structure, in the logical construction of the derivative from the two source categories, but simply because in the oath of partial admission there is a rule that one is exempt in a case of heilekh. Here that does not apply, so I obligate him under the law of the oath of admission… I’d even say more than that: it could be that this oath is the sum of the bailees’ oath and the oath of partial admission, and it includes both. In a case of heilekh, the oath of partial admission drops out simply because it is heilekh; but in principle he is swearing here both the bailees’ oath and the oath of partial admission together; they have the same status. But how does that explain the Talmud saying that Rabbi Meir holds they are as though harvested, and the Rabbis hold they are not as though harvested? Meaning, it sounds like they disagree on… We are talking about the view of the Rabbis. After all, the whole question was about the view of the Rabbis: how can the Rabbis say here that it is like land, when elsewhere throughout the Talmud it says that the Rabbis hold grapes standing to be harvested are as though harvested? So Ri Migash and Maimonides say that this is only in the law of bailees that it is considered like land. This whole calculation is according to the Rabbis, and since Jewish law follows them, that is the law in practice as well. Rabbi Meir does not accept this whole approach; Rabbi Meir holds that it is movable property. If it is movable property, then one swears on it and everything is fine. But incidentally, even Rabbi Meir would still agree that the oath sworn here is the bailees’ oath; he just argues that since this is not land, then even in the bailees’ oath it is not considered land, and therefore according to him they really do swear over it. The Sages — no. They have no disagreement about the logic. The logic is agreed by both; their dispute is only over the question of the status of grapes standing to be harvested in the law of bailees. It doesn’t really seem from the plain sense of the Talmud that this fits. It looks as though if I read the Talmud straightforwardly, I’d say they simply disagree about grapes standing to be harvested for all laws. And that is the difficulty that all the medieval authorities ask. But how does that fit with the fact that throughout the Talmud it is obvious that grapes standing to be harvested are as though harvested, and here not only is it a dispute, but the law follows the Sages that they are not as though harvested? Therefore they explain — obviously the straightforward reading was that, and therefore Ri Migash says, and he has an answer, and Maimonides as well. Here we are talking only about the laws of bailees: that grapes standing to be harvested are as though harvested in the laws of bailees. That is the subject here, the law of bailees. Very forced. Obviously I would not have read it that way without the pressure, without the difficulty, but because of the difficulty — fine, that’s how they explain it. In any event, that complaint is not against me; Ri Migash and Maimonides say it, and that is clear. Now the question is how to explain it. Here is an interesting point for our purposes, and there are several more places where one can see this idea in Maimonides. For example, what happens if a bailee says, “I returned it”? Not “It burned,” but “I returned it to you, the deposit.” According to most opinions, there is no oath obligation here. Why? Because once he says “I returned it,” there is no contract anymore; the contract has ended. So he claims there is no contract, and the plaintiff claims there is. So it is like “Nothing of the sort ever happened.” “I returned it” is like “Nothing of the sort ever happened.” Maimonides’ view according to the Kesef Mishneh — and there is a dispute there between the Maggid Mishneh and the Kesef Mishneh — is that there is an oath obligation. And of course, according to what I am saying, this is perfectly understandable. Because when you say “I returned it,” what difference does it make that you say there is currently no contract? You still agree that his claim is not groundless; you say there was a contract. You are not saying “Nothing of the sort ever happened.” There was a contract, only I returned it. You are in a defensive posture, like “paid” in a loan. It is not like saying “Nothing of the sort ever happened.” Therefore Maimonides says: every bailee who is in a defensive posture must swear. One can see several other Maimonides passages, all of which people challenge and leave as “requires further analysis,” and everything is resolved according to this principle. For Maimonides, this oath is really the oath of the defending bailee. Now I want to go one step further. It may be — and now I move back from conceptual construction to common denominator — it may be, and I’m not sure, this is an interesting question on the logical level, that I can actually present this as a common denominator and not as conceptual construction. And I say like this: I have two oaths and the oath of one witness. In fact, you can include that too. I have three oaths among the Torah oaths. What characterizes all three of these situations? What is the common denominator among them — partial admission, the bailees’ oath, and the oath of one witness? What is the common denominator? Why is an oath imposed here in all three cases? The oath of those defending themselves. The oath of those defending themselves. These are three examples where in all three the defendant — who in principle is the current possessor and should win, since the burden of proof is on the plaintiff — nevertheless there are grounds that turn the defendant into someone defending himself. In partial admission, that’s what I explained before. In the bailees’ oath too: there was a contract between you, and you claim that you became exempt, you want to be exempt, you are not saying “Nothing of the sort ever happened,” you are defending yourself. In the oath of one witness, of course: if there were two witnesses, they would extract money from you. You have one witness against you. You cannot say there is nothing here, this is all made up, it’s false, “Nothing of the sort ever happened.” There is one witness against you; you can’t just dismiss it outright. So in all these cases we are really dealing with a person who is defending himself. If so, maybe this is not a fusion like conceptual construction; maybe it is a common denominator. There is a common denominator among these three oaths. And that common denominator says: any defendant, even if he is the possessor, if he is in a defensive posture, he has to swear. And the three examples of defensive posture are these three examples brought in the Torah. And again we have a puzzle: what? Why in heilekh? In heilekh too he is defending himself. In heilekh there is a special exemption. In any case there is a special exemption of heilekh in partial admission. That is another discussion. There are certain rules that I need to understand why they were stated, scriptural decrees of that kind. But what is shared by the three — this is really the structure of the four primary categories of damages. In the four primary categories of damages too there are special laws: fire is exempt for concealed items, tooth and foot are exempt in the public domain, a pit is exempt for vessels. But the common denominator among them all is that this is your property and its supervision is your responsibility, and anything that is your property and whose supervision is your responsibility is liable. More than that: I also said there is an opinion in the Rosh, that Rosh we saw, that perhaps what emerges from the give-and-take we learned from fire and pit would be liable even for concealed items and for vessels. The two exemptions of the source categories would not apply. Why? Because this is your property and its supervision is your responsibility — that is the common denominator. And on the contrary, in order to exempt it you need to learn it from fire, but it is not completely similar to fire because it also has an aspect in which it is similar to a pit. You cannot learn the exemptions from fire nor the exemptions from pit. And then suddenly you find that the derived case has more than the source categories. Why? Because that really is the idea. The idea is that once you strip away the special characteristics of the source categories, what remains is the shared element, the common denominator. What is the common denominator here? The oath of those defending themselves. Those defending themselves are always liable for an oath; there is no exemption of any sort. You want to exempt him by heilekh? Show me that he is fully similar to partial admission. But he is not fully similar to partial admission, because here there is the bailees’ oath, and the matter of bailees is not the same thing; so you cannot exempt him by the rule of heilekh, because he is not similar. Exactly like in “your stone, your knife, and your burden,” where you cannot exempt from concealed items, because it is not fully similar to fire — it is also somewhat similar to pit — and then it will be liable both for concealed items and for vessels. Exactly the same structure. And then it may be — and this would be a major novelty, by the way; it would have many halakhic implications, and I found no proof for it in the medieval authorities, so it may be they did not learn this way, but perhaps it really is correct, I don’t know — the practical consequence would be that in any situation you can think of where there is a defendant in a defensive posture, he would be liable for a Torah oath, not a rabbinic oath. And this would not be limited to these three examples, because here there is a common denominator. Any defending defendant must swear. We only need to define what counts as defending himself. Right, I’m not denying that. There is a question here: how do we define that this counts as defending himself merely because we have proof from partial admission? Right. So it’s not arbitrary. Fine, but you still need to define it, just like with property whose supervision is your responsibility, you need to define what counts as property whose supervision is your responsibility. There is foot, tooth, horn — so you take them, you learn from them in principle what “property whose supervision is your responsibility” means, and then you leave them behind; you climbed the ladder, climbed the tree, threw away the ladder, and moved on. That’s it. Same thing here. The source categories have specific characteristics, but once you have reached the common denominator, you discard the specific aspects. That is what we do in a common denominator. So now it turns out that there could be many more oaths that are Torah oaths. Any oath of a defendant who is defending himself, even if he is the possessor — any case where you have a defending defendant, even if he is the possessor, he would be liable for an oath, even if he does not fall into one of these three categories. Since any defending defendant is liable for an oath, if I’m right in this assumption. If it is conceptual construction, then no: only the combination of partial admission with the bailees’ oath can do this, not every defending defendant. But if I’m right that this is a common denominator and not conceptual construction, then every defending defendant is liable for an oath. We’d need to define what a defending defendant is, no matter; but in principle every defending defendant is liable for an oath. Wait, there is a very interesting anecdote — I mentioned it before, and with this I’ll finish. Wait, if you go in the direction of common denominator, then you can explain the whole story straightforwardly. You don’t need to build that it’s not partial admission and not the bailees’ oath; it’s the oath of those defending themselves. Yes, but then you can bring in heilekh as exempting, which it does… Heilekh would not exempt here, because this is a new oath. Heilekh exempts only from the oath of partial admission. No no, here we see that heilekh does exempt, because according to Rabbi Meir… Rabbi Meir is something else; we are following the Sages. But the Sages also do not obligate an oath. They do not obligate an oath because it is land. Meaning, because it is land, and that creates heilekh, and therefore it exempts. No, no. Heilekh is when what I admit is land. Here what I deny is land; therefore one does not swear. What I would be swearing about is land. In heilekh, what I admit is land, and I gave it to you, so it is no longer part of the dispute; it’s not the same thing. If you claim from me a shtender and land, and I admit the land, why am I exempt from swearing about the shtender? Is it because this is an oath on land? After all, I swear about the shtender, not about the land; regarding the land I admit your claim. No, because of heilekh I am exempt. After all, if I admit the shtender and deny the land, I am exempt from an oath not because of heilekh, but because the oath concerns land, and not because of heilekh. Fine — but you could explain here too that both what he admits and what he denies are land, and then you’d have heilekh here. Of course, but I’m saying: you have both this and that here, but they are on different sides. No problem — you have both partial admission and the bailees’ oath here; they are from different sides. Yes, but I’m saying I can explain that the reason the Sages exempt is because they say: look, if it is land, then you have heilekh here, and if it is heilekh, then you are exempt. And from the oath of partial admission I am exempt — what about the bailees’ oath? So I say, same thing: it’s the oath of those defending themselves. And in the oath of those defending themselves, who said that heilekh exempts from the oath of those defending themselves? No, because I’m trying to unify the two sides. I’m saying that when you do heilekh, you are basically saying that you have here… I have two parts of the claim here. One part is already behind me; it no longer belongs to the case. Now we are discussing the second part, which I deny in full. In that situation I am no longer defending myself, in heilekh. But then the exemption is because of heilekh, not because of land; again I return to the same point. Yes, but the exemption of… I want to say that the exemption of land creates the heilekh, and then the heilekh… No, no — again, you are mixing up the five that I deny with the five that I admit. The Talmud says one does not swear because it is land; that means it ties this to the fact that the five I denied are land. But you want to claim that the exemption is because of the five I admitted, because the five I admitted are land. You are right, but that is not what the Mishnah says. What the Mishnah says is that I am exempt because what I would swear about… But you can’t really infer one way or the other from this Mishnah, can you? It says, “And the Sages say: anything attached to the ground is like the ground.” And therefore what? The question is: what did they mean — the five he denies or the five he admits? That’s heilekh, the exemption of heilekh. Here it is not the exemption of heilekh; here it is the exemption of land. But does the Mishnah deal with heilekh there? Or is it… I don’t understand the Mishnah as dealing with that. What is the reason for the exemption? The reason there is that one does not swear on land, not that one does not swear because it is heilekh. The Mishnah says nothing of that. One does not swear on land. Or you could say maybe it does say that, no? After all, it says explicitly there, no? Let’s see if it says it. They are considered land, and therefore one does not swear concerning them because there is no oath on land, and not because of heilekh. That is clear. So what happens if I admit the five grapevines here, but the grapevines are detached? The five I admitted. The five I denied are attached. Incidentally, some medieval authorities want to say that this is the case here. Because they want to resolve all the contradictions and all the problems. But the simple reading is that this is not what is written here. Then there would be a practical difference. You claim that in such a case he would be liable, because there is no heilekh exemption here, since the ones I admit are detached. Okay? And I claim no: he is exempt because the five he denies are land. Just one anecdote with which I want to finish this matter. I mentioned earlier that the oath of partial admission is actually written not about loans at all, but about a deposit; it is written in the section of bailees. The Talmud at the beginning of Sanhedrin and in Bava Kamma 107 says that there is a mixing of sections written here. “That he says, ‘This is it’” is stated in the section of bailees, but the verse “that he says, ‘This is it’” is interpreted with respect to loans, regarding the oath of partial admission, while the whole context is really the bailees’ oath. So the medieval authorities usually don’t explain things like this, but that is what the Talmud says. There is mixing of sections, there isn’t mixing of sections, disputes and tannaitic disagreement in the Talmud itself. What is the idea behind it? Why does the Torah mix sections? Does it want to confuse us? Why write this oath of partial admission — which is an oath about loans — in the middle of the bailees’ oath? There is a common denominator. Because that is what it wants to tell you; from there comes this conceptual understanding. The Torah did not mix the sections for nothing. It mixed them to tell me that these are two examples of the same oath. These are not two different oaths. This is the oath of those defending themselves. True, each one has its own laws, just like in the four primary categories of damages each one has its own exemptions, but all of them are “property for which you are responsible and whose supervision is your responsibility,” and here all of them are “the oath of those defending themselves.” That is what they wanted to tell you. This mixing of sections is the source for what the Ritva and Maimonides say: that there is such a thing as an oath — the oath of those defending themselves. It emerges exactly from this mixing of sections, and then it stops being some strange scriptural decree where suddenly they mix in half a verse — and not even a whole verse, half a verse deals with loans when the whole section deals with a deposit. What does that have to do with anything? Why? The answer is: they intentionally mixed it. They mixed it in order to tell you that these are two oaths from the same family. Good.