Talmudic Analysis – Lesson 3
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- A conceptual yeshiva-style inquiry: analysis and synthesis
- The example of torts and presenting two sides
- A practical difference as a tool for sharpening and deciding
- The comparison to the scientific method and philosophy of science
- Permitted vs. overridden in life-saving on the Sabbath, and the lack of a practical difference
- Critique of medieval authorities (Rishonim), authority in halakhic ruling, and the joke about “a practical difference for a woman’s betrothal”
- An early source for the joke in the medieval authorities: the Sinai ox and the Ran
- Sharpening the torts inquiry: two agreed conditions and the question of primary vs. secondary
- A practical difference in burden of proof: Pnei Yehoshua and Chazon Ish
- Reading the Chazon Ish’s wording: “the damage is before us” and a new claim
- Rashi on Bava Kamma 9b: two versions as the structure of an inquiry
- Even HaEzel, Maimonides, and the practical difference of guarding by another person
- Critique of Even HaEzel’s practical difference and “it began with negligence and ended with an accident”
- Inciting a dog: exemption of the inciter and exemption of the dog’s owner, and the implication for the structure of liability
- A new conception: liability on the ox and transfer of liability to the owner
- Application to the inciter: why someone who incites his own dog could be exempt
- An apparent contradiction in Pnei Yehoshua and a proposed solution against dichotomy
Summary
General Overview
The text presents the concept of a conceptual yeshiva-style inquiry as a foundational tool of yeshiva thinking, in which two theoretical possibilities are formulated for understanding a law, sharpened through a practical difference, and sometimes decided between with the aid of sources. It compares this move to the scientific method and the philosophy of science, especially in Karl Popper, through the idea of falsification and experiment. It then demonstrates the importance of precision in formulating the sides and the danger of practical differences that collapse on second thought, and concludes with the claim that the dichotomous tendency of yeshiva-style inquiry sometimes ignores the possibility that both sides are true together.
A conceptual yeshiva-style inquiry: analysis and synthesis
An inquiry is an analysis of concepts and ideas in a given topic / passage, with a dismantling side that separates the components and a constructive side that allows a synthesis of the possibilities into one conceptual game. The inquiry sets out two options for understanding a law and formulates them precisely, because imprecise formulation causes everything that follows to “get messed up.” The conceptual game moves between analysis and synthesis, where the breakdown into two possibilities is done in order to build from them implications and laws.
The example of torts and presenting two sides
The text offers an example from Torah monetary law of damaging property, such as “If one man’s ox gores another man’s ox” and “If a fire breaks out and finds thorns,” where a person must pay when his property causes damage. It asks whether there is also a prohibition against causing damage or only an obligation of payment, and presents two understandings of tort liability: liability because of negligence in guarding, or liability by virtue of the fact that the property belongs to the owner, as a kind of human periphery. It emphasizes that a person who causes damage is liable even in an unavoidable accident, whereas damaging property is not liable in an unavoidable accident, because the periphery is more distant.
A practical difference as a tool for sharpening and deciding
The text states that a practical difference is an indication that the two sides of the inquiry are genuinely different and not merely alternative formulations, because it creates a halakhic difference in which “according to this possibility he would be liable” and according to the second he would be “exempt.” It argues that a halakhic implication serves as a means of sharpening theories and testing them, and that finding a Mishnah, Talmudic text, medieval authorities (Rishonim), or halakhic decisors who decide the case of the practical difference can decide the inquiry. It presents the practical difference as parallel to an “experimental case” that tests a theory.
The comparison to the scientific method and philosophy of science
The text describes testing a scientific theory through prediction and experiment, where a particular case both clarifies what the theory says and examines whether it is true. It presents Popper’s example, “All ravens are black,” and explains that a theory can be refuted by means of one raven that is not black, but cannot be proved by a large number of black ravens. It states that according to Popper, the criterion of scientific status is the ability to subject a theory to a test of falsification, and gives the example, “All fairies have three wings,” as a theory that is not scientific because there is no experimental way to test it. It adds that some disagree with Popper in that they attribute significance to cumulative confirmation through many and varied pieces of evidence, but the asymmetry between proof and refutation remains a central principle.
Permitted vs. overridden in life-saving on the Sabbath, and the lack of a practical difference
The text describes the dispute among the medieval authorities (Rishonim) whether life-saving on the Sabbath is fully permitted or merely overridden, and suggests that the practical difference usually brought is “choose the lesser prohibition first,” such as acting in an unusual way. It argues that even if the Sabbath is fully permitted, the permission applies only as far as is required to save lives, so there is still no permission for a more severe prohibition when a lighter one is possible. It also rejects the suggestion that the practical difference is whether one must repent for violating the Sabbath in order to save a life, because Jewish law obligated the act, and there is no meaning to accepting upon oneself not to repeat it in a future life-saving case. It concludes that in his view there is no real practical difference between fully permitted and overridden, and therefore this is an example of the importance of checking practical differences and suspecting that these may sometimes be two equivalent formulations.
Critique of medieval authorities (Rishonim), authority in halakhic ruling, and the joke about “a practical difference for a woman’s betrothal”
The text presents a response to the question, “And is it permitted to disagree with the medieval authorities?” and states that he disagrees when he does not think they are right, while distinguishing between what a student should do according to his rabbi and the rules for halakhic decisors. It brings the yeshiva joke about “a practical difference for a woman’s betrothal” and demonstrates it through a condition in betrothal dependent on the question whether the Sabbath is fully permitted in life-saving situations. It compares this to the absurdity of creating an artificial practical difference, like making a condition in betrothal depend on the color of the closet handle.
An early source for the joke in the medieval authorities: the Sinai ox and the Ran
The text brings the Talmudic text in Sanhedrin 15, “How many judges for a Sinai ox?” and asks whether the ox is judged by three or by twenty-three, based on the rule, “As the death of the owner, so the death of the ox.” It cites the Ran, who asks, “What practical difference does it make?” and gives his answer, “A practical difference for a nazirite,” namely for someone who accepts naziriteship on condition that a Sinai ox requires twenty-three judges. It presents this as an early appearance of the same joke, in order to emphasize that a practical difference is supposed to be a real tool and not a rhetorical trick.
Sharpening the torts inquiry: two agreed conditions and the question of primary vs. secondary
The text returns to tort liability and emphasizes that when one checks the Talmudic text, one sees that the initial formulation of the inquiry was “rash,” because everyone agrees that both ownership and negligence in guarding are needed in order to be liable. It reformulates the inquiry as a question about what creates the liability and what is merely a condition: whether ownership is what creates liability and negligence is only a condition for exemption, or whether negligence is what creates liability and ownership is a condition that defines the duty of guarding. It adds that it is typical for inquiries to converge toward close formulations, and cites the saying that there is no dispute from one absolute extreme to the other, to describe that disputes are usually not fully polar.
A practical difference in burden of proof: Pnei Yehoshua and Chazon Ish
The text proposes a practical difference in a case of doubt whether he was negligent in guarding after damage clearly occurred, and connects this to the question of upon whom the burden of proof lies in the dispute between the damager and the damaged party. It presents the rule, “the one who seeks to extract from another bears the burden of proof,” as implying that the damaged party must prove negligence, and then brings a dispute between Pnei Yehoshua and Chazon Ish. It explains the possible dependence on the inquiry: if negligence is the basis of liability, the damaged party must prove it; but if the very fact of damage by the owner’s property creates liability and negligence is only an exemption, the damager must prove that he was not negligent.
Reading the Chazon Ish’s wording: “the damage is before us” and a new claim
The text cites the Chazon Ish, who rules that the owner must clarify the matter “since the damage is before us,” and that the damager is regarded as “one making a novel claim.” It explains that the Chazon Ish places the burden of proof on the damager not because he holds that ownership itself creates liability, but because of a simple presumption that if damage happened, “apparently you didn’t guard properly,” and therefore the claim “I guarded properly” is a novelty that requires clarification. It concludes that the dispute between the Chazon Ish and Pnei Yehoshua may be technical rather than a fundamental dispute about the structure of responsibility.
Rashi on Bava Kamma 9b: two versions as the structure of an inquiry
The text cites Rashi on “Whatever I was obligated to guard, I rendered its damage fit,” and presents two interpretations. It explains the first version as the claim that the damage was enabled because “I did not guard it well,” and the second version as the claim that “it is upon me to make good and repair its damage,” meaning that the obligation is one of payment. It explains that later authorities (Acharonim) see in these two versions an expression of two conceptions: liability because of negligence in guarding versus liability because “my property caused damage,” while noting that there is no explicit practical difference there.
Even HaEzel, Maimonides, and the practical difference of guarding by another person
The text brings Even HaEzel, who formulates the inquiry as a choice between “an obligation of guarding” and an obligation of payment when “their property caused damage,” with guarding functioning as an exemption in unavoidable accident. It cites Maimonides: “The owners are obligated to pay, for their property caused damage,” and presents this as support for the conception that ownership and damage create liability. It brings a practical difference from Even HaEzel: the owners were negligent and left the door open, but another person came and closed it, and then the animal dug its way out in an unavoidable accident and went out and caused damage; according to the conception of an “obligation of guarding,” the owners are exempt because in fact it was guarded, while according to the conception of “exemption in unavoidable accident,” the owners are liable because they themselves did not guard it and cannot claim unavoidable accident.
Critique of Even HaEzel’s practical difference and “it began with negligence and ended with an accident”
The text argues that Even HaEzel’s practical difference is not compelling, because even if negligence is what creates liability, it is still possible to obligate the owners for their very negligence even if another person later guarded in practice. It brings an example from the laws of bailees in Bava Metzia, “it began with negligence and ended with an accident,” even when there is no causal connection between the negligence and the accident, and presents the possibility of liability because the negligence itself created the liability. It concludes that a practical difference that at first glance seems strong can “collapse” on second thought, and therefore one must examine both the sides and the case very carefully.
Inciting a dog: exemption of the inciter and exemption of the dog’s owner, and the implication for the structure of liability
The text brings the Talmudic text in Bava Kamma 24: “If one incited a dog against him, if one incited a snake against him, he is exempt,” and explains the conclusion “even the inciter is exempt” as an exemption both for the inciter and for the dog’s owner. It explains that when the dog belongs to one person and the inciter is another, each is exempt for a different reason, but it presents Pnei Yehoshua as raising the possibility that from here it follows that even if a person incites “his own dog,” he is exempt. It describes this as “crazy,” because it seems worse than simply leaving the door open, and compares it to the discussion of one who throws a vessel from the top of a roof and another who strikes it with a sword, together with a story about Hershele that illustrates a situation in which each person is “exempt” on a separate claim.
A new conception: liability on the ox and transfer of liability to the owner
The text proposes an explanation according to which the initial liability rests on the ox itself, and only because the ox is not a legal entity is the liability transferred to the owner as the “deep pocket.” It argues that if the owner guarded properly and the ox caused damage against his will, there is no justification to transfer the liability to the owner, and therefore the liability remains on the ox and is not collected, so as not to cause the owner a loss. It brings the example of an “ownerless ox,” where after a goring the damaged party acquires the ox itself even if someone else comes to acquire it afterward, in order to show that there is significance to liability imposed on the body of the damager itself.
Application to the inciter: why someone who incites his own dog could be exempt
The text explains that if a person incited a dog, there is no liability on the dog itself, because the dog “is not to blame” and acts without understanding under the incitement of the person. It argues that when there is no liability on the dog, there is nothing to “transfer” to the owner, and therefore the result is exemption even when the inciter is the owner himself. It concludes that this makes sense only if negligence in guarding is not what creates liability, because if negligence creates liability, then incitement is “the father of all negligence,” and one should have to be liable.
An apparent contradiction in Pnei Yehoshua and a proposed solution against dichotomy
The text points out that Pnei Yehoshua seems at one point to hold that negligence creates liability in matters of burden of proof, and at another point to hold that ownership and damage create liability in matters of incitement, and therefore an apparent contradiction is created. It proposes a solution according to which the inquiry need not be dichotomous, and it is possible that both conditions are primary together: both that the property is his and that there is negligence in guarding. It argues that this approach solves the picture, because in doubt about negligence the burden of proof is on the damaged party, since he must prove both conditions, while in the case of incitement there is no liability on the dog and therefore also no transfer to the owner. It concludes that the yeshiva tendency to think “either this or that” is a “disease” that sometimes misses the possibility that both options are true together, and he postpones the continuation of the discussion to next time.
Full Transcript
[Rabbi Michael Abraham] Okay, we’re in a conceptual yeshiva setting, and I spoke a bit, I spoke a bit by way of introductions, general introductions, and now I want to get a little more into the actual substance. I want to start with the concept of a conceptual inquiry, right? An inquiry, in what they call in the yeshivot. An inquiry is maybe the most, most basic conceptual notion. All the forms of conceptual yeshiva thinking basically come within inquiries. Meaning, there’s this option and that option. The distinction between the two options is a conceptual category: object and person, sign and cause, all sorts of things of that type. But all of that is really just sides within inquiries. And what is an inquiry? An inquiry is an analysis of concepts and ideas in a given topic / passage, an analysis of the concepts and ideas, and this kind of inquiry-thinking, or conceptual thinking, has both a dismantling side and a constructive side. It has a dismantling side and a constructive side in the sense that when you analyze something logically, you break it down into its components, but that breakdown ultimately becomes the basis on which you can build a connection, a synthesis. Meaning, there’s analysis and there’s synthesis. So you break down, say, two possibilities for understanding a certain law, and then you connect them together and say: these two possibilities are both playing together on the field. And then there are all kinds of implications and various laws and things of that kind. So the conceptual game is really between analysis and synthesis. We’ll see this in more detail, but that’s the heading. So we’ll need to see a bit how the analysis is done and a bit how the synthesis is done. I’ll maybe start with an example.
So let’s say we know that the Torah says, “If one man’s ox gores another man’s ox,” or “If a fire breaks out and finds thorns,” or things like that, then the person has to pay. If my property caused you damage, then I have to pay. We’re talking about property that causes damage, not a person who causes damage. This obligation that appears in the Torah is an obligation to pay. A few questions arise here. First: is there also a prohibition against causing damage? Or is it only that if you caused damage, you have to pay, but nowhere does it say that it’s forbidden to cause damage? Am I obligated to guard my property, my animal, so that it won’t go and harm someone else? That’s one question. The opening lecture on tractate Bava Kamma in the yeshivot is always: where do we know from that there’s a prohibition against causing damage, if there is one at all. Beyond that, there’s also a question about tort responsibility itself, which does appear in the Torah: if your property caused damage, you have to pay. The question is how exactly we understand tort responsibility.
And the standard definitions really place two possibilities opposite one another. One possibility is: if my ox, say, gored your ox, I have to pay because I didn’t guard it properly. I was negligent in guarding it. And therefore the responsibility is imposed on me; I have to pay if my ox caused damage. A second possibility is that the very fact that this property belongs to me obligates me to pay, not because I was negligent in guarding it, but the very belonging of the property to me is a bit like I myself caused the damage. When I myself caused damage, why do I have to pay? Because I didn’t guard myself properly? No. Because what I do, I’m responsible for what I did. Right? It’s not because I didn’t guard myself properly. When my property causes damage, that’s basically very similar. It’s some kind of extension of me, and when it causes damage, I’m really responsible for that, not because I was negligent in guarding it. Looking at negligence in guarding as the basis of tort liability is really a view that treats my property as an independent factor, separate, unrelated to me. It’s something that belongs to me; I’m supposed to guard it; and if I didn’t guard it, responsibility is imposed on me. The second view says no, the property is really some kind of extension of me. Just as when my body causes damage I have to pay. I am not my body; I am my soul. And if my body causes damage, I have to pay. If my property causes damage, that’s a somewhat broader extension, and I also have responsibility. When the body causes damage, by the way, a person who causes damage is liable even in unavoidable accident. With damaging property, one isn’t liable in unavoidable accident, okay, but that’s because the extension is more distant. Those are the two possibilities.
So first of all, I’m using this example to present the concept of a conceptual yeshiva-style inquiry. So I say: we have two possibilities that we place opposite each other, two possibilities for understanding the concept of tort responsibility. Where do these two possibilities come from? Logic, thinking, what sounds reasonable. Okay, what possibilities are there? Some will say that really maybe only negligence in guarding is reasonable—but responsibility simply because my property caused damage, why is that reasonable? And then they’ll say: no, you’re raising another possibility because it exists, not because it’s logical, but because there’s another possibility; maybe that’s true too, even though I have no logic for it. I do think there’s a kind of logic in it, as I explained before. Just as a person is responsible for what he himself does, and not because he was negligent in guarding himself, but because he has to bear the consequences of what he himself did—when your property does something, you have to bear the consequences because it’s as if you yourself did it. There is logic to such a conception. So there are two possible ways to understand it.
These possibilities probably emerge out of logic, but I see a basic law that appears in the Torah, in the Mishnah, or wherever, it doesn’t matter—tort responsibility. Now I ask myself a priori, before I get into all the sources and everything: how can something like this be understood? Two possibilities occur to me, the two possibilities I set out here. Okay, so those are really the two sides of the inquiry. Those sides need to be formulated well, because that’s the basis for everything. If we don’t formulate them correctly, everything will get mixed up afterward. We need to formulate this very precisely. One of the indications that we’ve formulated it properly is the concept of a practical difference. I ask myself: what practical difference is there between the two possibilities? I presented two possibilities for understanding tort responsibility—let’s see whether there’s any difference between them at all. Maybe it’s just saying the same thing in different words. If I find a practical difference, a legal difference, between these two possibilities—according to this possibility he’ll be liable, according to the other possibility he’ll be exempt in a certain situation—okay? Then if I find a halakhic difference, I’ve really sharpened for myself the two possibilities and the difference between them. Right? The halakhic implication is a way of sharpening my theories, yes. The two possibilities are really two possible theories. I find a certain implication, and with respect to that implication I can check what follows according to this possibility and what follows according to that possibility.
More than that: if I find a Mishnah or a Talmudic text or medieval authorities (Rishonim) or whatever that deals with this particular case, this practical difference, and says something, that can decide the inquiry for me. If they say he’s liable, then apparently they understood like side A. If they say he’s exempt, they apparently understood like side B. Now notice the similarity between what I’ve described here and the scientific method. It’s exactly the same thing. Basically, when I build a scientific theory, the way I test it is that I think to myself: what prediction does it give me? What does that mean? I try to think of an experiment such that, when I perform it, according to this theory X should come out. Now if X comes out, I’ve confirmed it. If X doesn’t come out, I’ve refuted the theory. The case—which is really a particular case of the theory, a case about which the theory tells me what ought to happen—is really a way both to sharpen what the theory says and at the same time to test whether the theory is correct, because I can simply do the experiment on that case and check whether the theory is correct or not. Okay? So the importance of situations that test a theory is true both in science and in conceptual yeshiva-style inquiry.
In philosophy of science—maybe a little introduction to philosophy of science because it’s connected to this discussion—in philosophy of science they dealt a great deal with scientific generalizations: how we arrive at a scientific theory, and how the theory is connected to the empirical facts that it is supposed to explain or to the predictions it gives. And the claim in philosophy of science in general is that we have a collection of cases that we know. We did an experiment or observed—doesn’t matter—we established what happens in one situation or another. From that we try to build some more general theory, and if you like, maybe two competing theories—that’s already an inquiry, okay? How do I know which of the two theories is correct? I do an experiment. What is the experiment? It’s an attempt to construct a situation or case for which the implication will be different depending on whether you adopt theory A or theory B. And then, if you do the experiment, you see what comes out. What comes out there can test your theory.
For example—the example Popper always uses, the philosopher of science—all ravens are black. I have a scientific theory that all ravens are black. How do I test this theory? I ask myself what it says. It says that if I see a raven and check its color, it will be black. What do I need to do in order to test the theory? Look for ravens and see. If I find a raven and it’s black, the theory has been confirmed. If I find a raven and see that it’s pink, then I’ve knocked down the theory, the theory has been refuted. The theory that all ravens are black is incorrect—here we have a raven that isn’t black. Okay?
Now Karl Popper argues that a scientific theory can only be refuted, not proved. Think about how you would prove the theory that all ravens are black. There’s no way to do it. You see one raven and it’s black—okay, but maybe others aren’t. You see another one, two more, five more, ten more—you never know whether you’ve seen them all. How would you know? Maybe there’s some raven you didn’t see and it’s yellow. Okay? There’s no way to prove a theory. More than that: if, let’s say, I saw all the ravens—fine? Let’s say there’s a finite number of ravens and I saw them all—then that’s no longer a theory; it’s just a collection of facts. By definition, a theory contains more information than the information I directly observed. Otherwise it’s not a theory. I’m simply collecting all the facts I know and putting them under one principle, and that isn’t called a theory. A theory is always something where I take a set of given facts, build from it some general law that also deals with facts I haven’t seen, something more general, and I claim that this is my scientific theory, that it’s true. Now we need to test that. Who says it’s true? Maybe I generalized incorrectly. Generalizations can be wrong. So I need to test it and do an experiment, an experiment that checks it.
For example, I saw five ravens; all of them were black. So I have a hypothesis: all ravens are black. A competing hypothesis: maybe all ravens in Israel are black, but in other places they aren’t. So now we have two theories. Now I want to test which of them is correct. To check more Israeli ravens and see whether they’re black or not—that’s not effective. Because regarding that, both theories agree. They may both be wrong, and then I’d knock them both down. But if I want to examine which of these two theories is correct, I need to take a non-Israeli raven and see. If it too is black, excellent. If it isn’t black, then apparently ravens outside Israel aren’t black; only Israeli ravens are black. And so on. So really the particular case, about which the theory says something, helps me both to sharpen exactly what the theory says—I can apply it to a particular case—and also to test it. To test what’s correct, which theory is correct and which is not.
Okay? So also in… maybe before that, one more sentence about philosophy of science. Popper’s claim really says that a scientific theory cannot be proved, only refuted. That’s actually how he defines it—this is his criterion for the scientific status of a theory. A theory is scientific if it can be subjected to a test of refutation. Meaning, if an experiment can be done that checks whether the theory is correct or not. A theory for which there is no possible experiment that can check whether it is correct or not is not a scientific theory. I have a theory that all fairies have three wings. That’s not a scientific theory. I have no way to subject that to an empirical test; I can’t check whether it’s true or false. So that’s not a scientific theory. Now you can argue about all kinds of cases, like, I don’t know, all the stars sparkle. Fine. So is that a scientific theory? It’s not entirely clear, because we have no practical way to check all the stars. There are stars in the universe that we can’t reach. Okay? But in principle it is testable at the theoretical level. So there’s a debate over whether that’s a scientific theory or not. Fine? But claims that in principle cannot be subjected to a test of refutation, an empirical test, are not scientific theories.
And Popper basically claims that what you can do to a scientific theory is only refute it, not prove it. There are those who disagree with him, but not entirely. They agree that you can’t prove a scientific theory, but they argue that confirming a scientific theory does have significance. Meaning, if I found one black raven, well, that somewhat confirms the claim that all ravens are black. I found another black raven—that confirms it even more. If I did many experiments and in all the ravens I saw they were black, then the theory that all ravens are black… More than that, if I checked this in varied cases, that confirms it even more. Because if I checked the theory that all ravens are black only on Israeli ravens, that’s weaker than checking it on Israeli ravens and Australian ravens and European ravens. Because that gives me an indication that really all ravens—it’s not just an Israeli artifact. Okay? So variety in the evidence and quantity of the evidence confirm the theory. But for our purposes, what matters is what refutes the theory, not what confirms it. One failed experiment—that’s the asymmetry between proof and refutation. A theory can be refuted by one experiment. Bring me one raven that isn’t black, and the theory falls. No matter how many ravens you bring that are black, the theory is never proved. At most it may be more and more confirmed, but never proved. A scientific theory cannot be proved. A scientific theory can be refuted. Okay?
Now a practical difference functions in a very similar way with respect to the sides of an inquiry, just as an experiment does with respect to a theory. A practical difference is basically a halakhic case in which I test my conceptual theory. Okay? Now what does “test” mean? First of all, I present a practical difference in order to show that there is a difference between the two sides. If there is a practical difference, then I’ve sharpened the difference between the two sides of the inquiry. Because sometimes we formulate two things, but really there’s no true difference between them. In a moment I’ll maybe give an example of that. And second, the practical difference can also help me decide the inquiry. If I find a Maimonides who says X, then apparently he held like theory A. If the Rashba says Y, he apparently held like theory B. If everyone says X, then theory A is correct and theory B has fallen. Okay? So it works very similarly to putting scientific theories to an experimental test.
Let’s take an example to sharpen the point a bit more. There is a discussion among the medieval authorities (Rishonim) about what happens in life-saving situations on the Sabbath. We know that saving a life overrides the Sabbath, right? If there is danger to life, not only is one permitted but one is obligated to violate the Sabbath in order to save life. Okay? But there is a discussion among the medieval authorities whether this is fully permitted or merely overridden. What does “fully permitted” or “overridden” mean? “Fully permitted” means that the Sabbath is simply permitted, there is no issue at all. The moment there is danger to life, there is no Sabbath. Fully permitted. The second view says no, the Sabbath prohibition exists and you are violating a prohibition. But one may violate this prohibition because saving life overrides it. Therefore it’s called “overridden,” not “fully permitted.” Meaning, the Sabbath prohibitions are pushed aside in the face of saving life, but they are not canceled when there is danger to life. Okay? So that’s the question of fully permitted or overridden. In the Talmudic text itself these concepts appear regarding ritual impurity: whether impurity is fully permitted for the community or overridden for the community. But the medieval authorities discuss this regarding life-saving on the Sabbath.
Can any of you think of a practical difference? What would be the difference between saying it’s fully permitted or overridden? To say: maybe doing it in an unusual way? Okay, so the practical difference people usually bring really is whether to choose the lesser prohibition first. Meaning, if I can do a lighter prohibition, then why do a more severe one? So I’ll do the lighter prohibition if that saves the life of the person who needs it; then everything’s fine. There is certainly no permission to do a more severe prohibition if you can do a lighter one. Therefore, for example, if you do the prohibition in an unusual manner, which turns it into a rabbinic prohibition, that is preferable to doing it normally as a Torah-level prohibition. That’s the practical difference usually brought for the distinction between fully permitted and overridden. In my opinion, that’s not a practical difference. Why not? Because even if I say that the Sabbath is fully permitted in a place of danger to life, it is permitted when you need that permission for the sake of saving life. But if you don’t need it, then obviously the Sabbath was not permitted. Now, if you can save life without violating this prohibition, then why assume that this prohibition was permitted? If you have a way to save life without the prohibition, or with a lighter prohibition, then even according to the side that the Sabbath is fully permitted in a place of danger to life, it is obvious that one should first do the lighter prohibition. There is no reason whatsoever to permit a more severe prohibition if you don’t need it in order to save life. Okay?
Therefore, it seems to me that whether the Sabbath is fully permitted or whether the Sabbath is overridden in the face of saving life, there is no reason whatsoever to permit a severe prohibition if one can save the life at the cost of a lighter prohibition. So that’s not a practical difference. What would be? Let’s think of something else. Another possible suggestion might come up. Say that someone violated the Sabbath in order to save life. According to the side that it is fully permitted, he did nothing at all—everything’s fine, there’s no transgression, nothing. According to the side that it is overridden, there is a transgression; it was just permitted for him to do it, or even he had to do it, because saving life overrode it. A practical difference, for example: does he need to repent for it? If there is no transgression here, there is nothing to repent for. If there is a transgression, you did it, you did it—but there is still a transgression, so repent. That too is a practical difference that people raise in this context of fully permitted versus overridden. But that too is of course not a practical difference, because let’s say the Sabbath is overridden in a case of danger to life, and I violated the Sabbath to save life—do I need to repent for that? After all, I was obligated, and Jewish law obligated me to do it. Not just that it was permitted after the fact—if I hadn’t done it I would have been negligent. I need to do it, I’m obligated to do it.
More than that, think what it means to repent. One of the components of repentance is to commit not to repeat this sin ever again, not to do it again. That’s called repentance. And when I violated the Sabbath in order to save life, what am I supposed to do? Accept upon myself that next time too, even if there is danger to life, I won’t violate the Sabbath? I am obligated to violate the Sabbath. So what does it even mean to repent for that? Repent for what? Did I behave improperly? I behaved excellently. And the fact that the theoretical halakhic definition is that it’s overridden and not fully permitted—what does that have to do with anything? I myself was completely fine; I did what Jewish law required me to do. What sense does it make to repent for such a thing? So that too isn’t a practical difference. In my opinion there is no practical difference. “Fully permitted” and “overridden” is an inquiry that everybody does and oceans of ink have been spilled on it, and there is no practical difference between the two sides. It’s simply saying the same thing in different words. And that is an excellent example of the importance of two things: first, precise formulation of the sides of the inquiry; and second, the importance of practical differences. If you find a practical difference, then you understand that there’s a difference here. It’s not just two formulations of the same thing, because you see there is a different halakhic implication depending on whether you hold like A or like B. If you don’t find any halakhic implication at all, you should suspect that what you really have here are two formulations that are entirely equivalent, just in different words.
[Speaker B] And the whole discussion between fully permitted and overridden in general?
[Rabbi Michael Abraham] Medieval authorities, later authorities, many discuss it.
[Speaker B] What do they say?
[Rabbi Michael Abraham] They bring the practical difference I mentioned, but in my opinion it’s simply not correct. The conceptual? You mean mainly the medieval authorities. Meaning, what you said, that of choosing the lesser prohibition first.
[Speaker B] So why do they bring it if it isn’t correct?
[Rabbi Michael Abraham] They thought it was correct, but I happen to think it isn’t. The conceptual category of fully permitted and overridden—you can say that on the Sabbath there’s no issue of choosing the lesser prohibition first; do whatever you want. Fine, but that’s not called “fully permitted.” It doesn’t follow from the conception of “fully permitted.” The conception of “fully permitted” can still restrict you only to what you need for the sake of saving lives. Now they can propose such a conception, according to which you don’t need to choose the lesser prohibition first—do whatever you want. What does “whatever you want” mean? Whatever you need in order to save, but without making calculations about what’s lighter and what’s more severe, with an unusual manner or without one. But don’t hang that on fully permitted versus overridden. Call it fully permitted and overridden, but that isn’t really fully permitted and overridden in the conceptual sense. In my opinion there’s no connection.
[Speaker B] That’s your view?
[Rabbi Michael Abraham] Yes.
[Speaker B] Are you allowed to disagree with the medieval authorities?
[Rabbi Michael Abraham] What do you mean, allowed? I disagree. Like that—even if it were forbidden, I would disagree; what can I do? I don’t think they’re right. It’s not a question of permitted or forbidden. No, but—
[Speaker B] So what will ultimately be accepted? If now a rabbinic ruling comes that disagrees with the medieval authorities? What the rabbi says. Because he has the medieval authorities on his side.
[Rabbi Michael Abraham] Here too there are no rules. What does it mean, what will carry the day? If you ask him and he’s your rabbi, then apparently you’ll do what he tells you. His calculation is whether to go against the medieval authorities (Rishonim) or not. Fine, he’ll make his calculation. I personally think there’s no problem going against the medieval authorities (Rishonim), but there are many halakhic decisors who say there is a problem. Fine, in my opinion they’re mistaken. So this example of “permitted” versus “overridden” sharpens for us the importance of practical ramifications, and therefore conceptual inquiries always come with practical ramifications; you don’t just raise conceptual distinctions in the air for nothing. There’s a well-known yeshiva joke about this. Someone raises two sides, say, “permitted” and “overridden,” fine. They ask him, what practical ramification is there? They can’t find one, so he says: there is a practical ramification. A practical ramification for betrothing a woman. Know that one? What does it mean, a practical ramification for betrothing a woman? If I betroth a woman on condition that the Sabbath is permitted in a life-threatening situation, is the woman betrothed or not? So if the Sabbath is permitted in the face of saving a life, the woman is betrothed. If the Sabbath is only overridden in the face of saving a life and not actually permitted, then the woman is not betrothed. So there you have a practical ramification for the question whether the Sabbath is permitted in the face of saving a life or not. Okay? It’s a joke, of course, because by that logic there’s also a practical ramification for the question whether the color of this closet handle is cream or white. If I betroth a woman on condition that the color of this handle is white, then the question is whether she’s betrothed or not—a very important halakhic question, and now we need to discuss the color of this closet handle. That’s very important Torah study; it has a practical ramification. Okay? Obviously that’s nonsense, it’s a joke. Interestingly, this joke has a source in the medieval authorities (Rishonim). In the Talmud in tractate Sanhedrin, page 15, the Talmud says: how many judges for the Sinai ox? What does “the Sinai ox, with how many” mean? The Talmud—the Torah says that it was forbidden to go up Mount Sinai at the revelation at Sinai; it was forbidden to go up the mountain, “also the flock and the cattle shall not graze facing that mountain.” Meaning, no one was allowed to come near the mountain. What happens if some ox went up the mountain? You have to kill it. That’s what the Talmud says. Now, with how many judges do you try it? Do you need three judges or twenty-three? That’s the Talmud’s question in Sanhedrin 15: the Sinai ox, with how many? There is a rule that the death sentence of the owner and the death sentence of the ox are parallel. Since when a person is judged for a capital offense you need twenty-three judges, three are not enough, so too when an ox is judged for death you need twenty-three judges and not three. As the owner’s death sentence, so the ox’s death sentence. And in the course of the passage there they ask, okay, the Sinai ox—with how many was it judged? With three or with twenty-three? The Ran asks there: why does it matter? The Sinai ox was long dead—I don’t know—or maybe it existed, maybe it didn’t, but why is this relevant? What practical ramification is there to the question whether you judge it with twenty-three or with three? So he says: a practical ramification for a nazirite. If someone takes upon himself naziriteship on condition that the Sinai ox requires twenty-three judges, then the question is whether he is a nazirite or not. That is exactly the joke about a practical ramification for betrothing a woman. Okay? It appears in the Ran; in my opinion he said it as a joke. But these examples show us that a practical ramification is a very powerful tool for checking the sides of a conceptual inquiry and also for deciding between them—but first of all, to check them, to see that there really are two different sides here. Okay? By the way, in that context of the Sinai ox, for example, it’s obvious that there really are two different sides here. The question whether the Sinai ox was judged by twenty-three judges or by three judges is not saying the same thing in different words. But it has no practical ramification for us there, in that context. In that case, the existence of a practical ramification isn’t needed in order to sharpen the fact that there really are two different conceptions here and not two different formulations of the same conception. There it’s obvious that these are two different conceptions. Indeed, it has no practical ramification for us, because what was, was; it no longer exists. So it has no practical ramification for us, but in other places the search for a practical ramification always serves to help us make sure, first, that there really are two sides here; second, to sharpen them; and third, to decide between them. Okay? That is the role of a practical ramification in the context of yeshiva-style conceptual analysis. So let’s go back to the inquiry that’s been accompanying us: tort liability. I have to pay—we had two possibilities. One possibility is that what creates liability is negligence in guarding. The second possibility is that what creates liability is the very fact that my property caused damage. I’m responsible for what it does regardless of negligence in guarding. Okay? Those are the two conceptions. Now here there’s an important point that touches on how the two sides are formulated. When you check the Talmud—already in the first Mishnah in Bava Kamma, and in many other Talmudic passages—you see that this formulation of the two sides of the inquiry is not precise; it’s hasty. Because everyone agrees that in order for me to be liable for damage done by an ox, first, I have to be its owner and it has to be my ox; and second, there has to be negligence in guarding. Everyone agrees about that. If it’s not my ox, I’m not liable for its damages. If it is my ox but I wasn’t negligent in guarding it—rather I guarded it properly—and nevertheless it got out, I’m also not liable for its damages. And everyone agrees to that; these are explicit Talmudic passages. Okay? So in fact this formulation, as I presented the inquiry, is imprecise. According to everyone, you need both things. Both that my property caused damage and that there was negligence in guarding. So what are the two sides of the inquiry after all? Now I’m moving to a more precise formulation. The question is which of these two components is primary and which is secondary. Meaning: everyone agrees that it has to be my property for me to be liable for damage, and everyone agrees that there has to be my negligence in guarding. But the question is: is the fact that it’s my property what obligates me, only if I wasn’t negligent they exempt me from payment; or is the negligence what obligates? What obligates is the very fact that my property caused damage. Only if I wasn’t negligent, then they exempt me from that liability. And if I was negligent, then they won’t exempt me. But what is the basis of liability? The basis of liability is that my property caused damage, not that I was negligent. Only if I wasn’t negligent—that will be an exemption, it will exempt me from the liability. That’s one side. The second side works the other way around. Negligence in guarding is what obligates me to pay. Of course, there’s a condition that it be my property, because if it’s not my property I’m not obligated to guard it. I’m obligated to guard my property, not somebody else’s. So according to this conception, negligence in guarding is the ground of liability; it’s not an exempting condition. It is the ground of liability. And there’s a condition that the property be mine, because without that I’m not obligated to guard it. So notice: we now have a new formulation of the inquiry. The question is not whether you need negligence in guarding or need ownership. Everyone agrees you need both. You need me to own that property and you need negligence. But there are still two ways to formulate the tort theory here. Is negligence in guarding the ground that obligates, with the condition that the property be mine? Or no—the fact that the property is mine is the ground that obligates, with the condition that there be negligence? Now that already sounds really close. And by the way, this is very typical of yeshiva-style conceptual inquiries. After you dig a bit, and check practical ramifications, and refine things, in the end you arrive at formulations that are very close. At the beginning you start with two formulations that look completely different from each other, and little by little the whole thing starts coming closer together. Because usually the truth lies somewhere in the middle and the differences are in the blend, in the proportions—but not in completely polar conceptions. The Talmud in Shabbat says there is no dispute from one extreme to the other. Meaning, there’s no situation where one person would say that regarding a certain act one is liable by Torah law, and another person would say it is completely permitted. There’s no such thing. There can be a situation where one says it is a rabbinic prohibition and another says it is permitted, or one says it is forbidden by Torah law and another says it is forbidden by rabbinic law. But there is no case where one says it is forbidden by Torah law and the other says it is completely permitted. Meaning, polar disputes usually won’t be found. Usually disputes are narrower; the sides of the dispute are closer to one another. And in our case, we now understand that these two formulations are in fact already very close, so close that you can start wondering whether this is really not just saying the same thing in different words. Because now both sides already agree that the property has to be mine and that I have to have been negligent in guarding. The only question is whether the fact that the property is mine is what creates liability, and if I wasn’t negligent that exempts me; or whether the fact that I was negligent in guarding is what creates liability, only if it’s not my property then I don’t need to guard it. Is there a difference? In this more precise formulation it’s already closer, right? The two sides. Is there a difference? What’s the difference?
[Speaker B] That if it’s not your property, you’re not liable for the damage.
[Rabbi Michael Abraham] Wait, both sides agree that if it’s not my property, I’m not liable. And both sides agree that if I wasn’t negligent, I’m also not liable. Under both sides that’s the outcome. That’s exactly the difference between this formulation and the initial formulation. The whole question is just who is the basis of liability and who is a secondary condition, but you need both things. So in fact one can begin to suspect—who says there’s any difference at all? Maybe we’re just playing with words, and in fact these are two different formulations of the same thing. For that you need a practical ramification. If I find a case or a certain law where under conception A it comes out that you’re exempt and under conception B it comes out that you’re liable, or some halakhic difference comes out between these two conceptions, that means they are two different conceptions. Right? So the practical ramification is a tool to clarify that. So let me suggest a practical ramification to you. A practical ramification: there is a dispute between the Pnei Yehoshua and the Chazon Ish—what happens when my animal caused damage, my ox gored your ox. Clearly, everyone agrees. I was not negligent. And the injured party claims that I was negligent, because he wants me to pay him. And I claim I’m exempt, I wasn’t negligent. Am I liable or exempt? Notice, if I wasn’t negligent, certainly I’m exempt—everyone agrees. If I was negligent, everyone agrees I’m liable. Here there is a dispute between the damager and the injured party over whether I was negligent or not. What happens in such a case? In such a case, what determines the outcome is on whom I place the burden of proof. If the burden of proof is on the damager, then if he brought no evidence he’ll have to pay, because he caused damage. If I place the burden of proof on the injured party, then if the injured party brings evidence he’ll get the money, and if he doesn’t bring evidence he won’t get the money. What happens when there is no evidence at all? Neither the damager nor the injured party brought evidence. That will depend on the question of on whom the burden of proof rests, right? If the burden of proof rests on the injured party and he brought no evidence, then the injured party loses—that is, he won’t get the money. If the burden of proof rests on the damager and he brought no evidence, then the damager will have to pay and the injured party will indeed get the money. Meaning, the question of on whom the burden of proof rests—that is really the whole discussion. Okay? Let’s go back to our question. So it’s known that my ox caused damage, and there is a dispute over the question—I claim that I guarded it properly, that I wasn’t negligent, and the injured party claims that I was negligent and therefore he is suing for the money. Let’s examine what the law would be according to each of the two conceptions I presented earlier. First of all, basically, you know the rule “the burden of proof is on the one who seeks to extract money from another”? Meaning, if someone sues—Reuven sues Shimon—Reuven has to bring evidence for his claim. If he doesn’t bring evidence, he won’t get the money. It’s not the defendant who has to prove; the plaintiff has to prove. The one in possession doesn’t have to prove. Okay, the burden of proof is on the plaintiff. Who is the plaintiff in a damage case? The injured party, right? The injured party wants the damager to pay him. The injured party is the plaintiff. Therefore, basically, the injured party should have to bring the evidence. If the injured party claims that I was negligent in guarding, bring evidence that I was negligent. I claim that I was not negligent. You want me to pay you—I’m the defendant, you’re the plaintiff, and since you’re the plaintiff, you have to bring proof. So we would expect that in such a case the injured party would have to bring proof, and if there is no proof, then the damager would not be required to pay. It turns out there is a dispute about this between the Pnei Yehoshua and the Chazon Ish.
[Speaker C] But there is proof that the ox did in fact attack. What?
[Rabbi Michael Abraham] There is—
[Speaker C] Proof that the ox attacked, that—
[Rabbi Michael Abraham] It certainly attacked, but who says I was negligent? If I wasn’t negligent, I’m not liable. No—
[Speaker C] Right, I mean, he’s already supposedly brought proof of some kind of damage.
[Rabbi Michael Abraham] So what if it caused damage? But I’m not a damager—I wasn’t negligent in guarding; injured party, go sue the Holy One, blessed be He. What do you want from me?
[Speaker C] You want there to be a difference between the two cases of “the burden of proof is on the one who seeks to extract money from another.” That there’s a difference between the two cases here. Here, you know, you need to prove—the very fact that there was proof of it.
[Rabbi Michael Abraham] Okay, in just a moment we’ll see. What you’re saying is very correct; I’m getting to it in a moment. So the initial intuition should have been that the injured party would need to bring proof, because he wants the damager to pay, so he’s the plaintiff, he has to bring proof—”the burden of proof is on the one who seeks to extract money from another.” But the Pnei Yehoshua and the Chazon Ish disagree about this. How can one say that the damager is the one who has to bring proof? After all, he’s the one being sued to pay—why should he have to bring proof? So the explanation usually given is very similar to what you said earlier. And what they say is this. If I understand negligence in guarding to be the basis of the claim—that is, why am I liable? Because I was negligent in guarding. Then you—let’s say you’re the injured party—you have to bring evidence that I was negligent in guarding, otherwise you have no cause of action. Okay? Even though it is known that my ox damaged your ox, fine—but I’m not liable because my ox damaged; I’m liable because I was negligent in guarding. And you’re suing me to pay, so prove that I was negligent; I claim I wasn’t negligent. Okay? But if I understand that what creates tort liability is the very fact that my property caused damage—not because of negligence. Only if I was negligent—sorry, only if I was not negligent—then they exempt me. That’s an exemption. It’s not that negligence is the basis of liability. The basis of liability is that my property caused damage. Only if I prove that I wasn’t negligent will they exempt me. You understand that in such a situation, I’m the one who has to prove that I wasn’t negligent, since the fact that my ox caused damage already initially obligated me. Right? That is the basis of liability. So he has met the burden of proof. I owe him, and I want not—not to become liable—I want to be exempted. The liability already exists. I want to be exempted by claiming that I wasn’t negligent. If the liability already exists and I want to be exempted, then the burden of proof is on me. If I don’t bring evidence that I guarded properly, why should they exempt me? After all, the basis of liability is already here: my ox caused damage, and that is the basis of liability. Clear?
[Speaker C] Because they simply assume you were negligent? What? They assume you were negligent if it was your ox—
[Rabbi Michael Abraham] No, no—not because they assume I was negligent, but because the very fact that my ox caused damage obligates me, because a person bears responsibility for what his ox does, regardless of any assumptions about negligence.
[Speaker C] Or maybe you could say that in court they simply assume negligence unless you prove you weren’t negligent.
[Rabbi Michael Abraham] You’re always one step ahead of me—excellent comment. I’m getting to that in a moment. For now, no. At this point what I’m saying is that the very fact that my property caused damage is a basis that obligates me, just as when I personally cause damage I’m liable not because I was negligent in guarding myself, as I said earlier. So too my property—my property is some kind of more distant periphery of myself—and if it causes damage, I bear responsibility for what happened there. Okay? But then what? There is a law that the Torah introduced: if I guarded properly, then they exempt me. Even though there is a basis of liability here, still they exempt me. But that is a claim for exemption; it is not a claim of non-liability. It is a claim for exemption. Now obviously, if there is already liability and I want to be exempted, I have to bring proof that I deserve to be exempted. After all, there is already a basis of liability. So there you have the practical ramification. The practical ramification between the two sides I formulated earlier—whether negligence in guarding is what obligates, on condition that it is my property, because otherwise I’m not obligated to guard it; or the opposite conception, which says that the very fact that my property caused damage obligates me, and negligence is only a condition—if I wasn’t negligent then they exempt me. The practical ramification is who has to bring proof when it’s unclear whether I was negligent or not. If negligence is the basis of liability, then you will have to bring proof that I was negligent. But if the fact that I was not negligent is what exempts—not that the fact that I was negligent is what obligates, but that the fact that I was not negligent is what exempts me—while what obligates me is that my property caused damage, then the burden of proof is on me. In order to be exempted, I have to prove that I wasn’t negligent. Okay? So there you have a practical ramification.
[Speaker C] Wait, but why is that really a practical ramification? Because to me it just sounds like some kind of methodological assumption of the court.
[Rabbi Michael Abraham] No, no—again, you’re going back to the previous question. Leave it; I’ll get to it in a moment. Right now the conception is not like that. Meaning, it’s not because the court always assumes that when the ox caused damage I was negligent. Rather, the very fact that my ox caused damage obligates me regardless of whether I was negligent or not, because it is my ox; I’m responsible for what it does. True, if I’m not negligent then they exempt me. But you don’t need—there’s no assumption here that I was negligent. That’s not why they obligate me.
[Speaker C] That’s how it sounds to me, that it is the—
[Rabbi Michael Abraham] I’m saying, there can be a debate. There’s one conception and another conception; right now I’m talking about this conception. Okay? And then I say: if that really is the situation, then this is a practical difference between the two… the two sides of the conceptual inquiry. On whom does the burden of proof lie? Do I have to prove that I was not negligent, or do you have to prove that I was negligent? Okay? Now, that’s seemingly so. But when you look inside the Chazon Ish, the Chazon Ish actually says that the burden of proof is on the damager. I keep saying that the burden of proof is on the injured party, because he is the claimant: “the one who seeks to extract from another bears the burden of proof.” The Chazon Ish claims that the burden of proof is on the damager. According to the usual explanation, the way later authorities usually explain the Chazon Ish, he apparently understands that the very fact that my property caused damage makes me liable, and if I prove that I was not negligent then I’ll be exempted; therefore the burden of proof is on me, to prove that I was not negligent.
Now I’m going to read you the language of the Chazon Ish, and you’ll see that what he actually says is—again, remind me of your name? Yanai. What Yanai said, and not what people usually explain in him. “And regarding what was written, to raise the doubt whether the damager is believed to say, ‘I guarded my animal’—” He says as follows: “We must consider: if the owners say they guarded it properly, is it on the owners to establish with witnesses that they guarded it properly, or is it on the injured party to establish that the owners were negligent”—that he did not guard it, that he was negligent. “And it seems that it is on the owners to establish it, since the damage is before us”—bottom line, damage happened here, and it’s known that your ox caused this damage—“the damager is considered as one making a novel claim, and it is upon him to establish it.” He is making a novel claim. Why is it a novel claim? What’s novel about it? If the ox damaged, then apparently you didn’t guard it properly. What does it mean to guard properly? Proper guarding is guarding that is supposed to prevent damage by the ox. That’s called guarding properly. Now the ox caused damage. Theoretically it could be that you guarded properly and the ox went wild and it still happened—fine, then you were under compulsion, you’re exempt. But the simple assumption, exactly as you said before, the simple non-novel assumption is that if damage occurred, apparently you did not guard it properly. And therefore the burden of proof is placed on the damager, to prove that he guarded properly, because what he is claiming is a novel claim. You’re saying: the ox caused damage, but despite the fact that it caused damage, know that I guarded it properly; it caused damage because it went wild. That’s not what usually happens. Usually if an ox causes damage, it’s because you didn’t guard it properly. Okay?
That means that when the Chazon Ish says the burden of proof is on the damager, it is not because he understands that the mere belonging of the ox to me obligates me to pay, and the claim of negligence is an exemption claim. Rather, it’s exactly what you said earlier. The Chazon Ish assumes that if damage occurred, you were probably negligent in guarding. Or in other words, he too agrees that negligence in guarding is what obligates. He is not arguing with this Pnei Yehoshua. Just as the Pnei Yehoshua said that negligence in guarding is what obligates, and therefore the burden of proof is on the injured party, the Chazon Ish agrees that negligence in guarding is what obligates. So why does he say that the burden of proof is on the damager? Because in his view, so long as it has not been proven otherwise, it is obvious that you were negligent, because otherwise damage would not have occurred. But he still holds that negligence in guarding is what obligates, not ownership of the property. Okay? So that is basically the claim, and it shows us that even when we’ve found some practical difference between the two sides of a conceptual inquiry, you have to check very carefully—it’s not certain that it’s correct. There may be another explanation for that practical difference. There is a dispute here between the Pnei Yehoshua and the Chazon Ish over the question of who bears the burden of proof—that’s a fact. But to automatically hang that on the conceptual inquiry I brought earlier—that’s no longer a fact, and it’s not necessarily correct. Here it seems that precisely the Chazon Ish also agrees that negligence in guarding is what obligates; he just assumes that if there was damage, then there was probably negligence. So it’s a technical dispute between him and the Pnei Yehoshua, but in the basic tort conception, both agree that negligence in guarding is what obligates.
Now look at Rashi; I’ll show you here. Fine, good. Now let’s look at Rashi in Bava Kamma 9b. There’s a Mishnah there that’s phrased in a very cumbersome way, and Rashi writes there as follows. The Mishnah says: “Whatever I was obligated to guard, I have rendered its damage fit.” That is the language of the Mishnah. “Whatever I was obligated to guard”—whatever I have to guard—“I have rendered its damage fit.” What does that mean? Rashi brings two explanations. That is, you see what’s highlighted: “If it damaged, I have enabled and prepared that damage, because I did not guard it well.” “So I found.” What does that mean? Lack of guarding. That negligence in guarding is basically the cause for which they sue me, right? If it damaged, then I did not guard it properly, and that is what obligates me. Therefore they sue me. That is the side that says negligence in guarding obligates.
“Another version”—another wording—“I found another explanation,” says Rashi: “‘I have rendered its damage fit’ means: it is upon me to repair and compensate for its damage.” Meaning, I have to pay. It’s not that negligence in guarding paved the way for the damage or caused the damage; rather, “‘I have rendered its damage fit’ means that it is upon me to repair the damage.” The responsibility is on me. And the later authorities explain that here Rashi apparently means the second conception, which says that the reason I have to pay is not because of negligence in guarding. That is the conception of the first wording. The second wording says: no, “‘I have rendered its damage fit’” does not mean that negligence in guarding is the reason I am sued for the damage. Rather, I am sued for the damage because my property caused damage. I need to repair its damage because it is my property that caused the damage. True, I did not guard it properly, but what obligates is the very fact that my property caused damage. These two wordings in Rashi are basically expressing these two conceptions of the conceptual inquiry we discussed. But there is no practical difference here. He does not bring some case where there will now be a difference in law between this formulation and that formulation. But it does seem that interpretively he sees two possibilities here.
Now if we want a practical difference, let’s look at Even HaEzel. Even HaEzel—Rabbi Isser Zalman Meltzer, one of the sages of Jerusalem, passed away sometime in the 1950s. Yes, so he says as follows: “Now, the inquiry is well known whether liability for damages is because the Torah imposed a duty of guarding on the owners, and they are liable for their deficiency in guarding”—that is, why do they sue them? Because they did not guard properly—“or whether the owners are obligated to pay when their property caused damage, and guarding is an exemption that the Torah granted the owners due to compulsion, since they guarded properly.” If you guarded properly, then you were under compulsion; therefore they exempt you. Not that there is no basis to obligate. There is a basis to obligate, but you are exempt under the law of compulsion. Okay? Those are the two possibilities.
Look at Maimonides. Maimonides writes: “Any living creature that is in a person’s possession and caused damage—the owners are obligated to pay, since their property caused damage, as it is said: ‘If one man’s ox gore the ox of another.’ This applies both to an ox and to any other domesticated animal, wild animal, or bird; Scripture spoke of an ox only because that is the common case.” It’s not specifically an ox, but any property of yours that caused damage. But look how he explains it. They must pay—why? “Since their property caused damage.” Here it seems like the conception that the mere fact that my property caused damage obligates me, not negligence in guarding. I bear responsibility for the very fact that my property caused damage. If I was not negligent, maybe they will exempt me, but what creates the obligation is that my property caused damage.
So let’s see the practical difference. Even HaEzel writes as follows: “Now, the practical difference from this inquiry can be explained as follows.” Yes? There is a practical difference. “If the owners did not guard their animal, but another person guarded it.” Okay? I left the cowshed open and my ox could have gone out—I did not guard properly, I was negligent. Then someone else came and guarded the cowshed, for example, they left it with an open door and another came and closed it. “And it tunneled out.” What does “tunneled out” mean? It dug under the door—which is compulsion. Yes, even if he guarded, even if I locked the door properly, if the animal suddenly goes crazy and digs and gets out from underneath, that is compulsion. That is called guarding properly. And here notice: I, the owner of the animal, did not guard. Someone else came and closed the door. Now the animal goes wild, digs under the door, gets out, and causes damage. “We do not apply here the rule of ‘its beginning was in negligence and its end was under compulsion,’ because that is only where it was unguarded and could have caused damage even without the compulsion, as in a case where they fell and could descend by jumping.” There is no law here of “its beginning was in negligence and its end was under compulsion”; that doesn’t matter. “But where in any event it was guarded”—here it was guarded. Someone else did it, but the animal was guarded. “Then it is not called ‘its beginning was in negligence and its end was under compulsion.’ Rather, the owners simply did not guard it.” So based on reasoning, this law depends on the issue above.
“For if liability to pay is on account of the duty of guarding”—yes, if the basis of liability for damage is that I was negligent in guarding—“then the essence of the obligation is not to leave an animal unguarded. And since in fact it was guarded, even though the guarding was not by the owners, in any case they did not have an unguarded animal, and since it was guarded, therefore he is exempt; he should be exempt. But if we say that the exemption is because of compulsion”—that is, really I am liable because my property caused damage, only if I guarded properly then I am under compulsion—“and within the category of compulsion the Merciful One exempted him, as the Talmud says in HaMani’ach, but the very obligation of payment for damage caused by one’s property is the primary law”—the very fact that my property caused damage obligates me to pay—“then one cannot invoke here the claim of compulsion, since he did not guard at all, and how can he claim compulsion?” After all, you did not guard at all. You cannot say that you were under compulsion; you didn’t guard anything. So if the claim of guarding is a claim that exempts you because you are considered under compulsion, you have no such claim. Here you would be liable to pay. But if negligence in guarding is what obligates you, then here the animal was guarded. True, I was negligent, but the animal was guarded. And as for the fact that it got out—what could I do? It got out despite being guarded, so you can’t obligate me. That’s his claim.
The truth is that this is not necessary, because even if I said that negligence in guarding is what obligates, if someone else guarded in my place—fine—but at the end of the day I was negligent. Once I was negligent, one can still come to me and say: you were negligent, you have to pay. What difference does it make that someone else guarded in my place? He assumes that if negligence in guarding is what obligates, then here he should be exempt. But that is not necessarily so. On the contrary, I would say that if negligence in guarding obligates, then I was negligent, so first of all they obligate me.
I’ll give you an example. The Talmud in Bava Metzia—he brings it later—the Talmud in Bava Metzia discusses what happens if there is a situation called “its beginning was in negligence and its end was under compulsion,” and there is no connection between the negligence and the compulsion. That is, a person was negligent, left the door open, the animal went outside and died naturally—it had a heart attack. Now, the compulsion there is in the laws of bailees. As a bailee I had to lock the door; I didn’t lock the door, and in principle they could have stolen the animal. I breached my duty as a bailee. Okay? So I left the door open. The animal went out, but they didn’t steal it—it died of a heart attack. What happens in such a case? There is an opinion in the Talmud—or according to the Rif at least, there is an opinion in the Talmud—that I have to pay. Why? After all, even if it had remained inside the cowshed it would still have had a heart attack. It’s a heart attack; it has nothing to do with whether the door was open or closed. It’s not that someone came and stole it. If someone had come and stolen it, that would be because I left the door open, and therefore I would be liable. But if it had a heart attack, then even if it had not gone out, had remained in the cowshed, it still would have had a heart attack. So why—how can they obligate me?
So the argument there is this: I really become liable by the very fact that I left the door open. It’s only that if nothing had happened to the animal, then I would have taken the animal and given it as the payment that I owe. I owe payment in any case. The very fact that I was negligent obligates me to pay, not because something happened to the animal. It’s just that if nothing happened to the animal, I take the animal itself and give it as payment. There’s no sense in obligating me to pay if I’m giving you the animal itself back. But what happens if something happened to the animal? It had a heart attack, unrelated to my act. It doesn’t matter. Because the very fact that I was negligent in guarding obligates me to pay. And right now I don’t have the animal to give as payment, because it died of a heart attack. So what? They obligate me on the very negligence, not on the fact that the animal died. The fact that the animal died only means that I cannot pay with the animal itself. So in such a case one can certainly come and obligate me on the very negligence. All the more so in our case. In our case, the animal got out, right? One can obligate me on the very fact that I was negligent. What does it matter that someone else guarded in my place? I am already liable on the very fact that I was negligent. And I don’t have an animal here that I can take and give you as payment, because the animal was stolen, or something happened to it, it doesn’t matter what happened. Therefore in such a case I remain liable to pay.
So one can also argue with the practical difference brought by Even HaEzel, and I’m showing you this because from the previous example with the Pnei Yehoshua and the Chazon Ish, and also from this example, you can get the impression that when people bring a practical difference, very often on second thought we discover that it isn’t much of a practical difference after all. And one can argue, one can say that according to this side too he is liable, and according to that side too he is exempt. On second thought, the practical differences very often collapse. Not always what seems to us at first glance to be a practical difference really is one. And that is a very important lesson for anyone engaged in conceptual analysis, because even when you bring a practical difference: first, check its formulations carefully; check the formulations of the two sides of the inquiry carefully; and second, check whether this really is a practical difference, or perhaps on second thought it is not a practical difference at all.
Now let’s continue a bit further. Look at the Talmud in Bava Kamma, Bava Kamma 24; something fascinating happens there. “Come and hear: If one incited a dog against him, or incited a snake against him, he is exempt. What, does this not mean that the inciter is exempt, and the owner of the dog is liable? No—say: even the inciter is exempt.” What does that mean? I take your dog and set it on his chicken—let’s say that—and the dog runs and kills the chicken. So the Talmud says: both the inciter is exempt and the owner of the dog is exempt. Both of them are exempt. In the previous formulation, why is that? You are exempt and I am exempt because I am not the owner of the dog. We said it has to be my property for me to be liable. And you are exempt because you guarded properly; I incited it, what does that have to do with you? I did this thing; as far as you are concerned, you guarded it properly. It comes out that each of us is exempt for a different reason. You are exempt because you guarded properly, and I am exempt because it is not my dog. In practice, both of us are exempt.
Now the Pnei Yehoshua there, on the spot: “In the Talmud, ‘What, does this not mean that the inciter is exempt and the owner of the dog is liable?’ It seems that the assumption was, since it says ‘he incited the dog against him’ and not ‘he incited his dog against him.’” That is, I incite your dog against his chicken, not my own dog. Why don’t they talk about someone taking his own dog and inciting it against a chicken? “For that would imply an even greater novelty—that even in such a case he is exempt.” And not only when I incite your dog, where I am exempt and you are exempt—I am exempt because it is not my dog, and you are exempt because I incited it. What happens if I incite my own dog? The Pnei Yehoshua says, what difference should it make? I should also be exempt. And in that case the two people are gathered into one person, and it is still two functions, and therefore I should still be exempt. But he proves from the language of the Talmud that no.
And in principle, in such a situation he should be exempt too, he says, according to the possibility that the owner of the dog is exempt and the inciter is exempt. And that is a crazy thing. Meaning, I take my own dog, incite it against your chicken, and I would be exempt? Now, when this is divided between us—the dog is yours and I incited it—then we understand why. I am exempt because the dog is not mine, and since it is not mine, I am not obligated to guard it; and you are exempt because you guarded properly, and I am the one at fault in the fact that the dog caused damage. That I can understand. But if these two people now merge and become one person, then what does that mean? I am the owner of the dog and I also did not guard it properly, so surely I am exempt? Surely I am liable. How can one say that when these two people are one person, the exemption remains? He is still exempt. He is wearing two hats—the owner-of-the-dog hat and the inciter hat—and just as when these two hats are on two different people both are exempt, so too when these two hats are on one person, he is still exempt.
This reminds me: there’s a discussion in the Talmud about someone who throws a vessel from the top of a roof—he takes your vessel and throws it off the roof. Fine? So if it smashes, I have to pay. Right? But what happens if just before it smashes, someone else comes with a sword and shatters it? Someone else struck it with a sword. So there is a possibility in the Talmud that both of them are exempt. I am exempt because I did not break it; in the end, it did not break because of me. And the one who did it with the sword is exempt because he broke a vessel that was going to break anyway in another moment. He broke an already-broken vessel, as it were; even if he had not broken it, it would have broken in another second. So for what are you obligating him? I broke a broken vessel. So it comes out that both are exempt.
That reminds me of the story about Hershele. A story about Hershele: he came to town, went into a bakery, and asked for rolls. They gave him rolls. Suddenly he sees that they also have doughnuts. He comes back, returns the rolls, and says: give me doughnuts instead. Fine. They give him doughnuts, he finishes eating, and leaves the bakery without paying. The baker runs after him and says: wait, you didn’t pay! He says: what do I need to pay for? So he says: for the doughnuts you ate. He says: I gave you the rolls for those. But for the rolls you didn’t pay. Those I didn’t eat. Meaning, it’s exactly the same thing, right? If I throw a vessel off the roof and someone else comes and strikes it with a sword, I am not liable to pay because I didn’t break it—what do you want from me? In the end it didn’t break on the ground, it broke by the sword of the other person. The second one is exempt because even if he had not broken it, it would have broken because of me. So neither for the rolls nor for the doughnuts—nobody pays, both are exempt. It’s really the Hershele story.
Now the story gets more complicated. What happens if I threw the vessel off the roof, ran quickly downstairs, and broke it myself just before it smashed on the ground? I myself did both things. There are later authorities who want to claim that I would be exempt. Like two people—only it’s me. They merge, and the two functions are played by the same person. But it’s still like two people, and just as if it were two people I would exempt both of them, so too if these two functions are carried out by one person, I exempt him. Yes, the same story as with the Pnei Yehoshua and the one who incites the dog. Something here is not logical, completely illogical. Because what, really? I’ll formulate why. I’m going back to the Pnei Yehoshua with the inciter. Why is it not logical to exempt a person who incites his own dog?
Think of a situation where I have a dog and I did not guard it properly; I left the door open, and then it went out and mauled a cat or a chicken. Fine? Then surely I am liable to pay, right? Because it is my property, I have to guard it. I did not guard it properly, damage occurred, I have to pay. It’s my property, I was negligent in guarding, everything is satisfied. Now here, not only did I leave the door open—I actively incited it. That is much worse than leaving the door open. Not only did I fail to guard passively; I actively caused the damage. How can one say that in such a case I would be exempt? If I leave the door open I am liable; if I actually urge the dog to go out, then I am exempt? It’s a fortiori. Urging the dog to go out is far worse than merely leaving the door open. So how can it be that I would be exempt? What does the Pnei Yehoshua want here?
I want to make the following claim. Well, what is the line of reasoning that would obligate me simply because my property caused damage? Fine, my property caused damage—why does that obligate me? And if it obligates me, then why if I guarded properly am I exempt? Which way do you turn? If the obligation is not based on negligence in guarding, right, but rather on the very fact that the property caused damage, then why is negligence relevant at all? Why if I was under compulsion am I exempt? This is not a question of blame at all. My property caused damage; I am responsible for what it did. Why should it matter whether I am guilty or not guilty? It is not measured in terms of blame.
The claim is that really the obligation falls on the ox. My ox has to pay, not me. It’s just that the ox has no money, so they transfer the obligation to me. In place of my ox—as if I am the “deep pocket,” as the lawyers call it—and they sue me. Okay? Therefore the claim is that really there is an obligation on the ox itself that caused the damage. Since the ox cannot be sued—it is not a legal entity—they sue the owner, and the owner pays in place of the ox. Except that if I guarded the ox properly and it still caused damage, against what I tried to make it do, then the obligation remains on the ox; they do not impose it on me, because it acted against what I tried to make it do. After all, the whole reason they obligate me is that it is my extension, my periphery. But if I guarded it properly and nevertheless it went against my will and caused damage, then its obligation remains on it; they do not impose that on me. More than that: they won’t collect from the ox itself either. They could have taken it and sold it. They won’t do that—why? Because I would lose out. There is no justification for causing me a loss. The ox belongs to me. Fine? In principle the ox is obligated, but they won’t take it because they do not want to cause me a loss; I do not deserve a loss.
I’ll give you an example. The Talmud says: an ownerless ox, what is called an “ox of the wilderness.” If an ownerless ox gores, what is the law? There is no owner here; it is ownerless. It gored my ox. So in principle I take the ox itself. The ox itself belongs to me. What happens if before I seized the goring ox, somebody else came and acquired it? It’s ownerless; someone else came and found it and took possession of it. That won’t help. Why? The ox belongs to me. Once it gored my ox and damaged me, it belongs to me. What do we see? That there is an obligation on the ox itself. It has no owner—whom exactly do you want to obligate here? No, the obligation is on the ox itself. It’s just that if it has an owner, then I transfer the obligation to the owner. That’s all—when it comes to the owner, if he did not guard it properly. Or if he did guard it properly, then I don’t transfer the obligation imposed on the ox to him. Fine? That is the conception that says that what obligates is not negligence in guarding, but rather the very fact that my property caused damage. Not negligence in guarding.
Let’s go back to the dog. I incited the dog. Okay? In order to obligate me—if I did not guard it properly and the dog went out and caused damage, the dog is liable. Since I am its owner and I did not guard it properly, they transfer the obligation to me. Okay? But what happens if I incited the dog? If I incited the dog, there is no obligation on the dog itself. It is not guilty; it is an animal. If a person incited it, then the person did it, not the dog. So there is no obligation on the dog. Once there is no obligation on the dog, there is nothing to transfer to me. Because after all, the whole reason they obligate me is that there is an obligation on the dog and they transfer the obligation placed on the dog to me. But if there is no obligation on the dog, then you cannot transfer it to me.
So look, something very strange comes out here, but now at least it has an explanation. If I did not guard the dog properly and it went out and caused damage, then there is an obligation on the dog, because nobody incited it; it decided to cause damage. There is an obligation on the dog. And since it belongs to me and I did not guard it properly, they transfer the obligation imposed on the dog to me, and therefore I have to pay. But if I incited it—which seemingly makes me even more guilty, all the more so they should obligate me, right? No. Because if I incited it, then just as when I incite your dog—why is the dog not guilty and they don’t transfer anything to you? Because I incited it, not the dog; the dog did not cause the damage, I caused the damage through the dog, since the dog has no mind. Okay? Exactly the same when I incite my own dog. If I incite my own dog, then regarding the dog itself you cannot come with claims against it. There is a human being who incited it—in this case also the owner. But it doesn’t matter: the dog itself is not guilty; there is a person who incited it.
Now once there is no obligation on the dog, there is no obligation to transfer to me, because no obligation was created. Therefore they will not take the dog either, because there is no obligation on the dog. There is an obligation on the dog if it decided to cause damage. If I incited it, there is no obligation on the dog. Consequently, once there is no obligation on the dog, there is also nothing to transfer to me, and therefore I am exempt. In other words, the only way to understand why one who incites his own dog is exempt is only if I understand that what obligates is not negligence in guarding. Because if negligence in guarding is what obligates, then incitement is the father of all negligence. I incited it—not merely left a door open. Surely that is negligence squared. Surely I would be liable. The only way to understand this conception that appears here in the Pnei Yehoshua is to adopt the second view. Here’s the practical difference. Here’s the practical difference. If there is an obligation on the dog itself and the obligation passes to me because I am its owner—that is basically the conception that says there is liability by virtue of the fact that it is my dog, not because of negligence in guarding. It’s just that if I was not negligent, then they won’t transfer the obligation imposed on the dog to me, because I do not deserve to have the obligation transferred to me. Fine? Therefore I would be exempt. According to this conception one can understand why, when I incite my own dog, I would be exempt. Only according to this conception.
But notice what comes out here. Something very strange comes out. Earlier we saw that the Pnei Yehoshua understood that negligence in guarding is what obligates. Both the Chazon Ish and the Pnei Yehoshua understood that—negligence in guarding is what obligates. Here we see once again the Pnei Yehoshua, the very same Pnei Yehoshua, and suddenly we see that precisely the fact that my property caused damage is what obligates, not negligence in guarding. If it were negligence in guarding, it would be impossible to understand why I am exempt when I incite my own dog. So what does the Pnei Yehoshua hold? A contradiction, seemingly. Right.
I’ll say it briefly because time is already running out, and I won’t have time to get into this further; we’ll continue next time. This is another sickness of conceptual inquiry. In conceptual inquiries we have some tendency to treat them dichotomously. Either this is right, or that is right. There is another possibility: maybe both are true together. Maybe what obligates me to pay is both negligence and the fact that it is my property. Both are required. Neither is merely a side condition. Who says that when I have two conditions, one is primary and the other secondary? And then there is an argument whether A is primary and B secondary, or B is primary and A secondary? No. It may be that A and B are both primary; both are required in order to obligate me. That option very often doesn’t even come up in conceptual inquiries. People ignore it. There is some tendency to think dichotomously and to ignore the possibility that the dichotomy is simply wrong, and both possibilities are true together.
Now if you understand it this way, then the entire Pnei Yehoshua works out. It has to be my dog, and I also have to be negligent in guarding. Both things are required. Now, in terms of the burden of proof, what does that mean? If there is doubt whether I was negligent in guarding or not—I claim that I was not negligent and you claim that I was—the burden of proof is on you. Because you have to prove both conditions in order to obligate me. So long as you have not proven both, you have not met the burden of proof. That is the Pnei Yehoshua regarding the burden of proof.
Here, regarding the dog—the one who incites the dog—there is no problem. Why? Because the dog has to be mine, and I have to be negligent in guarding, right? Why? The dog has to be mine because there is an obligation on the dog, and if I am negligent in guarding then they transfer the obligation from the dog to me. Therefore if I incite the dog, I am exempt. So there you go—there is no contradiction in the Pnei Yehoshua. There is no contradiction in the Pnei Yehoshua if we understand that the inquiry is not dichotomous. You don’t have to choose one of the two sides; both may be true together.
And this again is a yeshiva illness. The yeshiva illness of dichotomy is the illness that says either this possibility or that possibility. For some reason people always ignore the fact that both possibilities may be true together. Who said you have to choose one of them? I may perhaps bring examples of this later as well. Okay? Fine. So I’ll come back to this next time, but that is, broadly speaking, the point. Okay, let’s stop here.