Analytical Talmudic Thinking – Lesson 11

[Rabbi Michael Abraham] Last time we talked about the distinction between a common denominator and conceptual construction. I said they seem, on the face of it, like two very similar mechanisms of inference, but in fact they’re mechanisms that in many ways are opposites. I’ll just put up the diagram here so we can review it without going into all the details. Right, so you see on the right the scheme of the common denominator. Basically there are two source cases, and each one has a property that the other one doesn’t. Right? This one has X, that one doesn’t have X. This one has Y, that one doesn’t have Y. And both have Z. Those are three properties that each of the source cases either has or doesn’t have. The derived case doesn’t have X, doesn’t have Y, but it does have Z. Now, the common denominator basically tells me: let’s take the intersection of the properties of the two source cases. What is the intersection? X can’t enter the intersection, because here there is X but here there isn’t. Y also doesn’t enter the intersection; here it exists but there it doesn’t. Only Z is the intersection. And if the two source cases have the property Z, and a certain law applies to them, then that law will also apply to the derived case that has the property Z. That’s basically the common denominator. A common denominator is built on the intersection of the characteristics of the two source cases. That’s what I want to see; that’s why it’s called a common denominator. Meaning: what is common to the two source cases? So you see, X isn’t common to them, Y also isn’t common to them, Z is the only thing common to them. Therefore I’m looking for the common denominator of the two source cases, and that means the intersection of their properties. And my assumption is that this intersection of properties is what determines the law we’re talking about. In other words, if the upper source case—let’s call it A—and the lower source case, B, have a certain law, I assume that if it exists in both of them that’s probably because it depends on property Z. Since both have property Z, that’s why this law exists in both source cases. But if that’s so, then in the derived case, this one here, since it has property Z, then apparently that law should apply there too, because it’s a result of property Z. Of course the assumption here all along is that every law in Jewish law is a derivative of some characteristics. Some characteristics—once those characteristics are present, that law applies. If other characteristics are present, a different law applies. Every law depends on a certain collection of characteristics. In this case it’s only characteristic Z. In contrast, conceptual construction is built in the opposite way. There is no—do you see what the difference is between the lists of characteristics? The difference is that Z doesn’t appear in the picture. Neither of them has characteristic Z. Everything else is the same. Right? The upper one doesn’t have X and does have Y; the lower one has X and doesn’t have Y; and this one has both X and Y. And what am I basically saying? Notice: here there is X and there is Y, here there is no X and no Y. So it’s not exactly the same thing without the Z; it’s just that on the field we have X and Y and not Z. And what happens here is that since I have two source cases that contain this particular law, I can now take the union, not the intersection, the union of their characteristics. The union of their characteristics is basically X and Y, right? X and not-X—the union is X; Y and not-Y—the union is Y. So the union of these two characteristics basically gives me a halakhic context whose characteristics are X and Y. And the claim is that if a certain law exists in both source cases, then it will also apply in what constitutes their union, or something formed by combining both of them together. Which is really the opposite of the logic of a common denominator. The logic itself is built on the opposite idea. I said that regarding the common denominator there are really two ways to explain it, because we really need to explain the source cases, and from the explanation of the source cases infer a conclusion about the derived case. Let’s say primary categories and derivative categories: basically the source cases are the primary categories and the derived case is the derivative category. So from the two characteristics of the primary categories I can infer a conclusion about—and the characteristics of the primary categories, of the derivative category—I can infer some conclusion about the derivative category. Now let’s see: I want to explain the characteristics of the primary categories. That’s the first step. Think of a parallel scientific move. So I say—since I mentioned this, I think—since I see a few examples of objects with mass that fall to the earth, say one is round and red and another is a black box. Both fall to the earth. What are their characteristics? One has the characteristic red, the other doesn’t. Right? One has the characteristic box-shaped, the other doesn’t. So you see this is exactly the X and Y and X-not-Y and Y-not-X. Right? Now I say: if both fall to the earth, what is the Z characteristic common to both? That they have mass. So I say: apparently what caused them to fall to the earth is that they have mass, and it doesn’t matter what shape they are, whether it’s a box or not a box, and it also doesn’t matter what color they are, whether red or black. X and Y play no role; I eliminate them. What plays a role is the shared characteristic: both have mass. And if so, then this thing too, which has mass, will also fall to the earth. Even though it doesn’t have any of the specific characteristics that the primary cases, the source cases, have. Right? So that’s the example on the right—the common denominator. On your left. Right. So at the principled level, when I look at the two source cases, I have two ways to understand why they both have the law I’m talking about. Think of it like two primary categories of damages. In both of them you’re obligated to pay. Now I want to know whether in the derivative category too you’re obligated to pay. The primary categories of damage have all sorts of characteristics: its initial formation was for damage, its way is to move and damage, another force is involved in it. There are all kinds of characteristics of the primary categories of damage. Okay? And I want to build from that a theory: which characteristics are responsible for the obligation to pay. And based on that infer a conclusion about a derivative category. Okay? So now I say this: I basically have two characteristics—not X, Y, and Z, but X, not-Y, and Z; not-X, Y, and Z. In both cases I have to pay. Now I ask myself: what are really the characteristics that generate the obligation to pay, that are responsible for the obligation to pay? I have two options. One option is to say: either X or Y. Right? That’s a theory that stands up to the facts. Because if I say it’s enough that one of them exists, either X or Y, and then you’ll be liable to pay—why does that explain all the facts? Because the upper one is liable to pay because it has Y, right? It doesn’t have X but it has Y. The lower one is liable to pay because it has X; it doesn’t have Y. And one of X or Y is enough for me to obligate payment. That’s one theory. According to that theory, what comes out regarding the derivative category? Well, we have the derivative category here. Is it liable to pay or not? Then it’s not X.

[Speaker B] Not X, not Y, and Z.

[Rabbi Michael Abraham] Yes, there’s some squiggle there. It’s not X, not Y, and Z. So exempt, right? Because if the theory is either X or Y, then whoever has neither X nor Y is exempt from paying. That’s one theory, and the result is that he’s exempt from paying. The second theory says no, it depends only on Z, on the common denominator. And since that’s so, then I say if there’s a common denominator, if there’s a common denominator, then I say it depends only on Z. According to that theory, what will happen in the derivative category? Liable, because the derivative category also has Z. If having Z obligates you to pay, then in the derivative category that has Z, you’re obligated to pay, right? So now I have two competing theories. And the question—what the law of the derivative category will be—depends on the question of which theory I adopt for the two primary categories. Right? Is the theory X or Y, or is the theory Z? Now we know that if there is in the Torah a derivation of a common denominator, that means the Torah assumes the second theory, Z. Why? Right. Ockham’s razor. Because it’s simpler. There’s a theory of either X or Y, and there’s a theory of Z. Why assume either X or Y if I have an alternative theory that is simpler? And since that’s so, I ascribe it to Z. Okay? Now what happens on the left? On the left, in conceptual construction, I don’t have Z. Right? So the theory is ostensibly either X or Y. There is no other theory. There’s no other option, because they don’t have Z. But here we discover something else. It’s not either X or Y; it can also be both X and Y. I need to—or not need to, sorry, I don’t—it’s enough to have either X or Y, but obviously someone who has both X and Y together will also be liable to pay. We’ll see later why the negation of X and the negation of Y in the source cases, in the primary categories, is also important. I think I mentioned winnowing and the wind assisting, right? We talked about winnowing and the wind assisting, so I’ll mention it, because this is an example that shows us conceptual construction. The common denominator is a familiar thing, but conceptual construction is my own term, so I want to clarify what it means. So we talked there, without going into all the details again: someone spits—yes, spits in the public domain—and the wind carries the saliva four cubits. Fine. Now we know there are two primary categories of labor on the Sabbath for which one is liable. Of the relevant two primary categories for us, one is throwing: someone who throws something four cubits in the public domain is liable. The second is winnowing. Throwing and winnowing are written similarly, and therefore this created all sorts of problems among the commentators; we saw that last time. But the second is winnowing. What is winnowing? It’s someone who throws the grain and chaff into the air, the wind comes and blows away the chaff, the grain falls, and I’m left with the grain alone. I separated the grain from the chaff. That’s the labor of winnowing. Okay. Now I want to use the labor of winnowing and the labor of throwing together in order to learn that someone who spits is also liable for four cubits, meaning if he does it on the Sabbath he’s liable. How do I do that? I say as follows: basically I want to learn from throwing. If throwing is liable, then spitting should also be liable. I’m talking about spitting where the wind takes the saliva, not where the spitting itself by his own force sends it four cubits, because then it’s just ordinary throwing. Spitting here means when you expel the saliva and the wind takes it four cubits. So how do we learn it? I say, ostensibly it’s like throwing. What’s the objection? What is there in throwing that isn’t present in spitting? Right—the involvement of the wind. When I throw, everything is done by my force; I threw it, therefore I’m liable, I’m responsible for what happened here, I did everything. In spitting, the wind is involved. It wasn’t just from me, just from my own force; the wind took it four cubits. So there is involvement of the wind, so who says I can learn from spitting? Notice: so if we assume the upper source case here is spitting, then spitting has the involvement of the wind—that’s Y, sorry—throwing doesn’t have the involvement of the wind, right? That’s Y, no involvement of the wind, here—wait, no. No involvement of the wind is X, and here there is involvement of the wind, so that’s X. Okay, what happens here? This is winnowing. What happens in winnowing? I want to learn this from winnowing. How can it be learned from winnowing? It’s not similar at all. Winnowing is a labor of separating the grain from the chaff. In spitting you’re not separating anything; we saw that the later authorities (Acharonim) ask this, right? In spitting, according to the Jerusalem Talmud, you’re not separating anything from anything, so you can’t learn it from winnowing. Meaning that in winnowing, right, you do have the assistance of the wind, but you’re not separating anything, right? What do I do now? I say this: let’s now take someone who spits. What happens in the case of spitting? On the one hand he isn’t separating anything, right? But someone who throws four cubits in the public domain also isn’t separating anything. Meaning, you don’t have to separate two things in order to be liable on the Sabbath, right? Here, someone who throws doesn’t separate anything; he just transfers it. Right, but in throwing the wind isn’t involved; in spitting the wind is involved, so winnowing will prove it, because in winnowing, despite the involvement of the wind, you’re liable. So what am I saying? I take the characteristic from winnowing that it involves the wind, I take the characteristic from throwing that it’s a labor that has no separation in it at all, only transfer of four cubits in the public domain, I combine them, fuse them together, and I create a labor that is transfer of four cubits in the public domain by means of the wind. That’s the derivative category, X and Y. It transfers four cubits in the public domain; there is no separation in it, but it is done with the help of the wind. So it’s similar neither to throwing nor to winnowing, but if I combine throwing and winnowing together, I can learn from them the case of spitting. But notice, here the derivation is not from the common denominator. What is common between throwing and winnowing? There is nothing common between them. Notice, I could formulate this like a common denominator. I could say: let’s learn spitting from throwing. What is unique to throwing? That the wind is not involved. Then winnowing will prove it. It will prove it. I say: what is unique to winnowing? That it is a labor of separation. Throwing will prove it, because it is not a labor of separation, and the law returns: this is not like that and that is not like this, their common denominator is that they are liable, and therefore one who spits is also liable. Right? I could formulate it exactly like a common denominator. Except for one thing: there is no common denominator here. There is no common denominator here. Meaning, the whole opening can be formulated in the same way. This one has involvement of the wind and that one doesn’t. This one has separation and that one doesn’t. And now what? Therefore the common denominator? No. There is no common denominator here. But if I combine the fact that here there is involvement of the wind with transfer of four cubits in the public domain and create from that a new labor through the synthesis of the two things, not through separation—here I’m doing a synthetic operation, not an analytic operation. Right? The intersection in a common denominator is an analytic operation. I analyze what happens in the two characteristics, I understand that Z is the only shared factor, that’s elimination, and then I say, okay, so apparently Z is responsible for the liability. Here I’m doing synthesis, not analysis. I say: I see that the involvement of the wind doesn’t interfere, I see that the fact that he isn’t doing a separation also doesn’t interfere, good—then an act of transferring four cubits that doesn’t do a separation and is done with the help of the wind, that too will be liable. Those are the characteristics X and Y. I combine them together. There is no common denominator here. I take part from one source case, from one primary category, part from the second primary category, connect them together, and from that create a third primary category—or really a derivative category, a third labor. I create a derivative category. I take half from this, half from that, combine them together, and create from that a derivative category. You understand that this is really not a common denominator. There is no common denominator here at all. Even though the similarity is a similarity in formulation—we’ll see that today too. The similarity in formulation is perfect. In the formulation you can say almost everything except for the sentence “what is common to both is that they are such-and-such.” That you can’t say. Okay, so that’s basically the idea. Now let’s look at the Talmud. Okay, so let’s see. The Mishnah in Bava Kamma: “There are four primary categories of damages: the ox, the pit, the maveh, and the fire.” “The law of the ox is not like the law of the maveh, and the law of the maveh is not like the law of the ox.” What is maveh? That’s a dispute there; it doesn’t matter at the moment. “And neither this nor that, which have life in them, are like fire, which has no life in it. And neither this nor that, whose way is to go and damage, are like pit, whose way is not to go and damage. Their common denominator,” so here a common denominator is brought, “is that it is their way to cause damage and their safeguarding is upon you, and when they cause damage, the damager is obligated to pay compensation for the damage from the best of the land.” So there are four primary categories brought here. Rashi explains: “primary categories” means what is written in the Torah; “derivative categories” means what is not written in the Torah, but is learned from what is written in the Torah. The primary categories are what is written in the Torah. Now these primary categories each have different characteristics. Fine? For example, with horn its intention is to damage; with pit, its initial formation was for damage; with fire, another force is involved in it; with tooth and foot, its way is to go and damage; with tooth, there is benefit in its damage. Each of them has different characteristics, and therefore they are four primary categories of damages, and there are also different laws for each one. There are different exemptions. Tooth and foot are exempt in the public domain. Horn, for the first three times, is liable only for half-damages. Pit is exempt regarding a person and vessels. Fire is exempt regarding hidden property. Meaning, each of the primary categories has its own special exemptions. At the end, the Mishnah brings the common denominator, that their way is to damage and their safeguarding is upon you, and so on. So a common denominator is being made here from the four primary categories of damages. The Talmud in Bava Kamma 2a asks: “Their common denominator—what does that come to include?” What is the closing sentence of the Mishnah coming to teach me? “Their common denominator.” What is the subtext of that question? Basically, we could have managed without it. Right? You have four primary categories of damages, everything is fine. What are you adding for me by saying “their common denominator”? Now this is just a side comment from me; it’s not so directly related to us, but it’s a point I like too much to skip. This question is a very strange question. The common denominator gives me the rule, right? Here I have a few examples, four examples, and the rule. Now if you bring me the rule and you bring me examples, what would you have considered redundant? What would you have suggested the Mishnah keep and what would you omit? Omit the examples and keep the rule, right? To keep the examples and omit the rule? Then maybe you’ll miss it? The rule is the best possible thing, right? But the Talmud—no, the Talmud says, “their common denominator—what does it come to include?” I have the examples, why do I need the rule? So this is just an interesting lesson: the Talmud has little respect for rules. The Talmud doesn’t really like rules; the Talmud doesn’t see value in rules, generally speaking. That’s a bit extreme as a statement, but generally that’s the basic orientation, and therefore in most cases, both in the Mishnah and in the Talmud, we discuss examples, not rules. We derive the rules. From this example I understand that there is some halakhic rule of such-and-such a kind, but the Talmud talks about examples. For instance, in the topic / passage of “this one benefits and that one does not lose,” the Talmud talks about someone living in his fellow’s courtyard without his knowledge: does he have to pay rent? Someone who enters his fellow’s courtyard without permission, does he have to pay for that? Right, the question is about a specific case. A little later—and that’s relatively rare, by the way—the Talmud says, basically translates it into a general conceptual language, draws the general law out of that particular example, and says that this is a case of “this one benefits and that one does not lose,” and the question is whether he is liable or exempt. That is really the question. Now you understand that this formulation of the question is a general one. It doesn’t speak about a courtyard or someone entering or anything. Rather, if there is a situation where one benefits and the other does not lose, the question is whether the beneficiary must pay the owner even though the owner suffered no loss. That is already a very general question. Here we’re looking for the rule. But the issue the Talmud is discussing is a case: someone who entered his fellow’s courtyard without his knowledge—does he have to pay or not? Later in the discussion the Talmud suddenly says, wait, this probably depends on some general law, and then they connect it to other examples, and so on. So that’s quite typical in the sense that the discussion in the Talmud is about a case. What is less typical is that the Talmud itself already tries to produce the rule. Usually the rule comes out in the commentators. There are few passages that deal with rules; they deal with cases.

[Speaker C] Okay, it’s interesting that the Talmud doesn’t want to establish rules.

[Rabbi Michael Abraham] Yes, I think the Talmud doesn’t like what jurists call the positivist conception. The Talmud is casuistic—it deals with cases, with concrete situations. And in my opinion there are excellent reasons for that. Right, like British common law. British common law is based on precedents, while in German law it’s more positivist. Both are no longer completely that way—they’ve already mixed somewhat—but broadly speaking those are two poles. Okay, Jewish law is on the British side. And Jewish law is very, very casuistic. It works with cases, and you make analogies from case to case; forget about rules. Because rules are something too rigid. In life, nothing behaves according to rules. What?

[Speaker C] I heard that in another context.

[Rabbi Michael Abraham] Maybe long-range, maybe more flexible thinking, I’d say. And I don’t want to bind you to rules, because no case really fits simply into the rules. So rules can actually confuse. If you give me a few—by the way, think about software today. Classical software is software built on rules. You tell the computer: if this is so, do this; if that is so, do that, and of course it has to follow your instructions. But a neural network—artificial intelligence is generally built on neural networks—a neural network trains on cases. There are no rules there. Give me this case and this case and this case, and in the end I organize myself, I understand more or less what needs to be done, and I reach conclusions about the next case. And nowhere will you succeed in extracting what the rule was according to which the program worked. There is no rule.

[Speaker B] And it gets further.

[Rabbi Michael Abraham] And it gets further. And that’s exactly a wonderful example of the limitations of positivist thinking and the advantages of casuistic thinking. Because in life you can’t fit all cases into some formal positivist framework of rules from which, using mathematics or deduction, you can derive conclusions. Because the Yekkes really believe in the science of law. They’re square like that. So they talk a lot about the science of law. What is the science of law? They view it as a kind of logical system. There is a set of rules established by the legislator; every case that comes before me is simply a particular case of the rules. I simply have to take the rules and apply them to the particular case, and that’s the result. In principle, the judge has nothing to do—it’s a deductive machine. Give me the rules, I’ll apply them to this specific case, and that will be the outcome. If all human beings are mortal, and Socrates comes before me and he’s a human being, then apparently he is mortal. That’s my role. It’s basically an empty role; even a computer can do that. Because it’s the science of law; they conceive of it as some kind of mathematics or logic. Now that doesn’t work. It doesn’t work because there is no case that fits simply into the rule. There isn’t. There’s always—obviously.

[Speaker C] What the Talmud—you’re

[Rabbi Michael Abraham] saying that basically what the Talmud—what does it do? It deals with the Talmud and wants to say—and on the plane of law, this is… Right, not only from the Talmud, but we think through rules. Obviously. It’s the disease of the age. Some kind of direction, but in the end, use your common sense. Think about someone who needs to speak a language and learns it according to rules. In an ulpan they teach by rules—how to speak and how not to speak, all kinds of rules. When he goes outside, he doesn’t know how to speak. If he starts correcting people on the street and sees the way they speak doesn’t fit the rules he learned, he’ll correct them, and usually he’ll be the one who’s wrong, not them. Because using a language is something complex. You need a kind of ear to understand the rhythm of the language, the inner logic of the language, and not a technical application of rules. The technical application of the rules misses the point. Use of the language will often deviate from the rules, and that’s the correct use, not a mistake. That’s the correct use. With these rules, there are simply exceptions, and you have to be careful not to become enslaved to rules. I remember when I taught in Yerucham, in the first cycle of the yeshivah. One of the guys got married, the first one from that cohort to get married. We went to the wedding, I was sitting there with one of the teachers, and I showed him how every one of the guys danced the way he learned. Look at him—do you see how he dances? Just like he learns, exactly the same thing. What do I mean? There are those who dance technically—like a Yemenite step or things like that. How do you do it? You see it’s not natural for him. So he calculates: now right foot, now left foot—he’s a positivist type. And that was exactly how he learned too, one to one. On the other hand, there were those who danced and it was obvious it was flowing out of their legs. They weren’t thinking about what they were doing; they were just moving with the tune, with the music, and that is exactly casuistic thinking. You make analogies like that; what feels right to you is what’s right. You don’t do the mathematical calculation to see whether it fits the rules or doesn’t fit the rules. Okay? So that’s—what? Me? Good question, I don’t know, someone would have to look from the side. I don’t think that would be a pleasant experience, in any case.

[Speaker B] Okay, so did I say German and French?

[Rabbi Michael Abraham] Yes, there’s a big difference.

[Speaker B] French is very Cartesian, and German is really confused.

[Rabbi Michael Abraham] Exactly the same thing. Exactly like British law, exactly the same thing. Yes. Among the French there’s the Napoleonic Code, it’s all organized, like with the Yekkes. No, but in law too. A code is basically something that comes to realize the German dream—some orderly structure that you can derive things from. Obviously, yes, it’s a culture that expresses itself in many places.

[Speaker B] Also in measurement—centimeters versus inches, pounds, and in objects.

[Rabbi Michael Abraham] Yes. It’s the same with us too. What does “with us” mean? A cubit, a foot, right? Everything is a handbreadth, a handbreadth. Everything. There’s nothing objective about it. So today there are arguments over whether a cubit is fifty-seven centimeters or fifty-two centimeters, and what was it in the past? In the past, someone would put down his hand and say: from here to here is a cubit. I don’t even know what a centimeter is. He defines the centimeter by the cubit, not the cubit by the centimeter. Okay? It’s simple. Again, this isn’t criticism. We’re built this way. I don’t think we have the option today of going back. But you have to understand that this is how it is, and be aware of the limitations of the matter. Meaning, you should use rules and analytical thinking, all of that is true, but in the end always also use common sense to see whether what you came up with makes sense. Okay? Whether it’s reasonable. All right? Fine. In any case, that was just a parenthetical remark. So the Talmud asks: yes, “the common denominator among them” comes to include what? Why do we need the common denominator? Abaye said: to include his stone, his knife, and his load, which he placed on top of his roof, and they fell in an ordinary wind and caused damage. Right, these are objects that he placed on the roof, an ordinary wind came and knocked them down, and they caused damage. What does that mean? The common denominator from the four primary categories in the Mishnah comes to teach that in such a case too, you are liable. What’s the meaning of this? The Talmud explains: what are the circumstances? If they caused damage while they were moving, meaning the wind knocked them down and they caused damage during the fall, then the Talmud says: that’s fire. So this is really the category of fire as a damager. In what way is fire distinct? “That another force is involved in it, and it is your property, and its safeguarding is upon you” — these too, another force is involved in them, and they are your property, and their safeguarding is upon you. So this is basically fire. So if it’s fire, then we wouldn’t have needed the common denominator. The four primary categories of damages could have stood on their own; obviously from each primary category I also learn its derivative categories, derivatives that resemble it. When you tell me “common denominator,” you’re basically telling me there are derivatives that I won’t be able to derive from one of the primary categories by a simple analogy, and therefore you need to arrive at the principle of the common denominator. So here I’m showing you this isn’t a good example, because I can learn it directly from fire in a simple way. The Talmud says: that’s if they caused damage while in motion. But what if it was after they came to rest? Meaning they landed on the ground and then someone tripped over them. Then the Talmud says: if he declared them ownerless, then according to both Rav and Shmuel, that is a pit. In what way is a pit distinct? “Its creation was initially for damage, and it is your property, and their safeguarding is upon you” — these too, their creation was initially for damage, and they are your property, and their safeguarding is upon you. But if he did not declare them ownerless — so the Talmud says, what are we talking about, a case where he did not declare them ownerless? Then according to Shmuel, who says all such cases are learned from pit, it is a pit. Shmuel does not require that the pit be ownerless. So if it wasn’t ownerless, it’s still pit, at least according to Shmuel. Maybe for Rav it works out, but at least for Shmuel it’s still pit. So the Talmud answers: actually, we are speaking of a case where he did declare them ownerless. No, we’re speaking of a case where he declared them ownerless, and still it is not like a pit. In what way is a pit distinct? “That no other force is involved in it.” But here another force is involved in them — the wind. Exactly like our case of winnowing, right? And in a pit no other force is involved; the pit is just there. Can you say the same about these, where another force is involved? The Talmud says: fire proves otherwise. Why does fire prove otherwise? Because in fire too, another force is involved, right, the wind, and that does not exempt you — just like the case of winnowing and throwing, okay? Fire proves it. But in what way is fire distinct? “Its way is to go and cause damage.” Fire moves; it is a very severe damager. You have to guard it because it quickly escapes, so to speak, and can cause damage; you have to watch it carefully. Here we’re talking about static things; maybe they don’t require such close guarding. So then they say: pit proves otherwise, and the argument returns. All right? That’s what the Talmud says.

[Rabbi Michael Abraham] Now what this means is as follows: we actually have two sources that teach us — pit and fire, right? And from pit and fire I learn about his stone, his knife, and his load that he placed on the roof, which caused damage after they came to rest and after he declared them ownerless. And then what? You can’t learn it from pit, because another force is involved in it. It could be that pit is liable because no other force is involved in it, but here the wind also contributed. Fine, but fire proves that another force is involved and you’re still liable. Fine, but in what way is fire distinct? Its way is to go and cause damage. These objects are not by nature things that go and cause damage. So pit proves otherwise, and the argument returns. So I take pit and fire together, and from the two of them together I learn these cases. So what? Why a common denominator? For this case. How do I

[Speaker C] say that this is a common denominator?

[Rabbi Michael Abraham] From pit and fire. What is learned from pit and fire — that’s why we need the common denominator. The common denominator of pit and fire is what teaches me this derivative category. And something that I could learn from only one primary category would not explain the common denominator. When you say “common denominator,” you are basically talking about learning from two primary categories together, okay?

[Rabbi Michael Abraham] Now here I’m already raising the question: is this a common denominator, or a conceptual construction? The Talmud here says it’s a common denominator. That’s the term it uses. But think for a moment about the examples, about the primary categories and the derivative. What is shared by fire and pit? In fire, another force is involved, and in pit it is not. A pit is initially created for damage, and fire is not. Fire normally goes and causes damage; pit does not. So what do they share? Not what don’t they share — what do they share? They have no genuinely shared feature. “Their way is to cause damage and their safeguarding is upon you.” Or what the Mishnah says: their common denominator is that they are your property and their safeguarding is upon you. And both of them normally cause damage and their safeguarding is upon you; Rif adds “they are your property.” Okay, so they have some kind of common denominator, some kind of Z, fine. But in practice, the unique characteristics of fire and pit are relevant characteristics. Because there are in fact special exemptions for fire and for pit. Meaning, it’s not as though we’ve shown that what matters is only “it is your property and its safeguarding is upon you,” and the whole question of whether its initial creation was for damage, or whether it normally goes and causes damage, or whether another force is involved — that all of that is irrelevant. That’s not true. It’s very relevant. Because in practice all sorts of laws in the law of damages come out of that.

[Rabbi Michael Abraham] So now I ask myself: what will be the law with respect to the derivative category? Or in other words, will this derivative have the laws of pit, or of fire, or of both, or of neither? Four possibilities. All right? It is learned from two primary categories, but the two primary categories are not identical. Each one has unique laws: fire is exempt for concealed items, and pit is exempt for vessels and for a person. Right? So what will happen with this derivative? Will there be exemption for vessels and for a person? Will there be exemption for concealed items? Will it be liable in both? Will it be exempt in both? What exactly happens there? This is a dispute among the medieval authorities. The Rosh there says as follows: “And some of the great authorities wrote that one is liable only for what both are liable for, and exempt for damage to vessels and for causing the death of a person, like pit, and for concealed items, like fire, because since they come by way of the common denominator, we assign them the more lenient aspect of both.” Meaning, what are “some of the great authorities” saying? You take the intersection, right? That’s the most intuitive thing. That’s what I would have said at first glance. Why? Because I’m basically saying this: if your derivative is learned from pit and from fire, then if there is something fire is exempt for — say I’m talking about concealed items — and I want to know whether his stone, his knife, and his load, which damaged concealed items, create liability or not, then in order to obligate payment I need both primary categories, fire and pit, right? But with concealed items I don’t have fire, because fire is exempt for concealed items. So in order to obligate the derivative for concealed items, I don’t have both primary categories to teach me that. Because fire has an exemption for concealed items. And if I need both primary categories in order to teach the liability, then for concealed items I cannot derive the liability. And the same is true for damage to a person and vessels in relation to pit. Because with damage to a person and vessels caused by his stone, his knife, and his load, if I want to derive liability for that, I need both fire and pit. But I don’t have pit, because pit is exempt for vessels and for a person. So I don’t have two primary categories that can teach me that vessels are liable. I have only fire to teach me that, but fire alone is not enough, because in fire another force is involved — sorry, because fire’s way is to go and cause damage. Okay? Therefore I cannot derive it.

[Rabbi Michael Abraham] So accordingly, the obvious conclusion — and this is what “some of the great authorities” say — is that the derivative will be exempt in all the exemptions of the primary categories, both the exemptions of pit and the exemptions of fire. You basically have to take the intersection of the two primary categories. And that is an indication that we are probably really dealing here with an inference of a common denominator. Why? Because if I’m talking about a common denominator, then think about it — let’s go back for a moment to the diagram below. Let’s try to identify the characteristics. So Z is that “their safeguarding is upon you,” right? That they normally cause damage and their safeguarding is upon you. That is Z. It exists in both, and it also exists in the derivative. Okay? Let’s say X is fire. Then X is that its way is to go and cause damage. That’s the stringency in fire, all right? And here there is no Y. And X in pit is that its initial creation was for damage, and here too there is no initial creation for damage. Okay? So I say, fine, let’s take the intersection. The intersection means that apparently the shared characteristic is what determines the law — that is, Z. The common denominator, that they normally cause damage and their safeguarding is upon you. In other words, the common denominator is Z. Throw out X and Y. The common denominator is Z. And therefore Z is what determines the liability. So one is liable because of Z.

[Rabbi Michael Abraham] But what follows from that? Let’s go back to the exemptions. Fire has an exemption for concealed items. Where does the exemption for concealed items come from? Either from Y or from not-X, I don’t know; one can discuss it. But that isn’t present in the derived case. Right? Sorry — the exemption for concealed items comes from not-X, not from Y. Because Y is a reason for stringency, not for leniency. Not-X is a reason for leniency. X and Y are always reasons for stringency by definition, because they are the grounds for refutation. Why can’t I derive the derivative from the primary category? Because it has Y; Y is a stringency. Or from the other primary category because it has X; X is a stringency. Okay? So I say: what is the reason for the leniencies of the two source categories? The leniency of the upper one comes from not-X; the leniency of the lower one comes from not-Y. Right? Now in the derivative I have Z like they do, but I also have both leniencies: not-X and not-Y. Therefore, clearly, both leniencies of the source categories will also exist in the derivative. That is how “some of the great authorities” understand it. Meaning, they understand this as an inference of a common denominator. All right? Are you with me?

[Rabbi Michael Abraham] Now let’s keep reading the Rosh. Here — “And there are those who were uncertain about the matter.” That’s a second view. What does it mean, “they were uncertain”? Uncertain between what and what? One side is the side of “some of the great authorities.” And what’s the other side? A doubt always has two sides. The question is: are you uncertain whether the great authorities were right? But he doesn’t raise a second side. So let’s read on: “And it seems to me” — that’s a third position, I’ll come back in a moment to the doubt — “that they have all the laws of pit,” meaning they have only the exemptions of pit, not of fire. That is what the Rosh himself holds: they have only the exemptions of pit. In a moment we’ll see why.

[Speaker B] Wait, so what was the difference between pit and fire that gives the exemption?

[Rabbi Michael Abraham] That its way is not to go and cause damage.

[Speaker B] In pit, its way is not to go and cause damage. And in fire?

[Rabbi Michael Abraham] So you don’t need to guard it quite as much, because its way is not to go and cause damage. It’s not such a great level of negligence that the Torah would impose liability. Right, and therefore that exemption is there. So the question is: we know the first view, “some of the great authorities,” which gives both exemptions. According to the Rosh, there is only the exemption of pit, not of fire. And those who were uncertain — uncertain between what and what? Between the Rosh and the great authorities?

[Speaker C] Or that they have no exemption at all?

[Rabbi Michael Abraham] Obviously that’s also a possibility, but what’s the logic? I think that is what they were uncertain about. How do I know? Because if they had been uncertain between the Rosh and the great authorities, then logically it should have been presented in the opposite order. First bring the great authorities, then bring your own position, and then say that some were uncertain between the first and the second. When you bring the first view, then say that some were uncertain, and then bring your own view, without telling me between what and what they were uncertain, you are probably assuming that there is an obvious second side. What is that obvious second side? That they have no exemption at all — neither that of fire nor that of pit. Now, there is no such explicit position in the Rosh, but there is such a side within the doubt. Okay? Those who were uncertain about the matter were uncertain about that.

[Rabbi Michael Abraham] So for our purposes, there are really three views. One view says they have both exemptions, both that of fire and that of pit. The second view says they have no exemption at all. And the third view says they have the exemption of pit. Now, the view that says they have no exemption at all — how do you get there? I think it works like this. You begin with the common denominator. What does the common denominator prove? That X and Y are not relevant, because the fact is that you are liable whether you have X or whether you don’t have X. Z is what is relevant for liability. Therefore, in the derivative, you are liable. Now, in order to derive the exemption, you would have to derive it from one of the primary categories, and you cannot derive it from either one alone, because relative to each of them you always have both an advantage and a disadvantage. So you cannot derive the exemptions from them, and therefore you remain liable in all cases. You derived the liability, but you cannot derive the exemptions from them, so you remain liable in everything — you have no exemption at all. You might derive from it an

[Speaker B] element that would say that if there is no X,

[Rabbi Michael Abraham] But maybe that’s because it has Y? Maybe only because it has Y and lacks X does it get the exemption. But in my case I have neither X nor Y.

[Speaker B] But Y is a factor of stringency. Right. So if it’s a factor of stringency, it won’t be the reason for the exemption. Meaning, it’s not clear that the reason for the exemption is the absence of X.

[Rabbi Michael Abraham] No, not necessarily. It could be some other combination. When you want to derive from there, you always ask: maybe yes, maybe no. And a derivation has to be necessary. If it’s not necessary, you can’t derive it.

[Rabbi Michael Abraham] And the Brisker Rav basically says — this is always one of the opening lectures to Bava Kamma — the Brisker Rav says that this is apparently a dispute between Rif and Rashi: how do we understand the meaning of the common denominator? Does the common denominator mean that, in effect, forget all the primary categories, throw them aside — in the end I know that for anything that is your property and whose safeguarding is upon you, you must pay? You have already produced the common denominator from all the primary categories, and that is the conclusion. Now you don’t need them at all anymore. Yes, but each primary category has exemptions. So you now have to learn for each thing separately whether it has exemptions, or whether it must be completely similar to one of the primary categories. If it is completely similar to one of the primary categories, then I will derive the exemption regarding it. But if not, then not. As far as the liability is concerned, the primary categories no longer play a role, because I already have the rule; I have already extracted the rule. Okay? That’s the mechanism I just described.

[Rabbi Michael Abraham] But there is another possibility: no, not at all. There is no rule. Each primary category stands on its own. If there is something you can derive from two primary categories, then you can impose liability on that too. I do not have some principle that says: anything that is my property and whose safeguarding is upon me, and it caused damage, I must pay. No — I never arrived at that formulation. I have four primary categories. From any two of them, or from all five of them if you like, or all four of them if you like, I can derive some derivative category. But I do not pass through some general principle and then forget the primary categories from which I came. In that case, then, I cannot derive the liability at all — that’s the position of the great authorities. I cannot derive liability at all for concealed items, because every single liability has to be learned from fire and pit together. But I don’t have fire when it comes to concealed items, so I can’t derive it. The difference between those who are uncertain and the great authorities is the question whether the primary categories continue to teach me the liability even after I have established the common denominator. In order to derive liability, do you need to go back to the primary categories again and derive the liability anew each time, or not? I already did that. I analyzed the primary categories, I reached the conclusion that there is a common denominator — that it is your property and its safeguarding is upon you — and now I have forgotten the primary categories; they are no longer of interest. Now I have a principle: anything that is your property and whose safeguarding is upon you — if it causes damage, you must pay. So now there is no need to get into the details of how it is built from that, whether it resembles the primary categories. It is your property and its safeguarding is upon you, finished. There is no need now to get into all the… Like, do you remember that example? Once I drew the conclusion and reached the conclusion that every object with mass falls to the earth, I no longer have to check whether it is black, whether it is rectangular, whether it is red. That doesn’t matter. I removed those characteristics; they are no longer relevant. Now I know that what is relevant is only that it has mass. That is what determines the result. So here in our case, what is relevant is that it is your property and its safeguarding is upon you. That’s all.

[Rabbi Michael Abraham] Now the question is how to understand the Rosh. The Rosh, who says that “they have all the laws of pit” — it seems to me that what the Rosh is saying is that we are dealing here with a conceptual construction, not with a common denominator. He says as follows: look, when his stone, his knife, and his load caused damage, what are the final circumstances? They came to rest, they fell from above in an ordinary wind, they came to rest, I declared them ownerless, and now someone tripped over them and fell. That is literally a pit. It is literally a pit. Right? So why can’t I learn it from pit? Because in these cases another force is involved — the wind brought them there; I didn’t do it all by myself. I did it with the help of the wind. So I can’t derive it from pit. So what do they tell me? Yes, but with fire we see that even though the wind is involved, you are not exempt. So this is not really a derivation from pit and fire. It is really a derivation from pit. I just have a problem with pit because here the wind helped, whereas in pit it did not. So perhaps the help of the wind could refute

[Speaker B] the whole thing — maybe he wouldn’t be liable? Fire proves that it doesn’t.

[Rabbi Michael Abraham] Once fire proves that I don’t have a problem with the fact that the wind helps, I return to the conclusion that this is completely like a pit. After all, there is no resemblance here to fire whatsoever. We are talking about a case where they caused damage after they came to rest and after they were declared ownerless,

[Speaker B] not damage while in motion. When they cause damage while in motion, that is damage of the category of fire — that’s what the Talmud says.

[Rabbi Michael Abraham] But in the end they caused damage after they had come to rest and I had declared them ownerless. So the damage is not damage of fire. It’s just that there’s another force involved here, because what brought them there was the wind, so I might have thought that would exempt you. Fire teaches that it doesn’t. Once I understand that the involvement of the wind doesn’t exempt, then it’s completely similar to a pit. It’s just a pit. I’m only worried that there’s wind involved here, so fire solves that problem for me. No problem—just because wind is involved shouldn’t bother you. Shall we say that throwing is the main thing? Exactly. That’s exactly like winnowing and spitting. Because think about it: when I spit, nobody in the world would think to obligate me because of throwing, because of winnowing. Winnowing is an act of separation. When you ask what I did, it’s obvious that I performed an act of throwing, not of winnowing. The only thing is that in throwing there’s no involvement of wind. In spitting there is involvement of wind. So I learn from winnowing that the involvement of wind does not exempt. But after I remove the exemption of the involvement of wind, I’m left with the fact that this is just spitting. It’s simply spitting. That’s what the Rosh says here too. It’s really parallel to winnowing and throwing. Completely parallel.

You mentioned the… great Torah scholars? Yes, the question is whether you have four primary categories. From them you derived a common denominator: anything that is your property and whose way is to cause damage, and so on. Now the question is: after you derived the common denominator, can you throw the primary categories in the trash and say, now I have one criterion—anything that is your property and whose safeguarding is upon you, if it caused damage then I have to pay. That’s one possibility. And then, still, if it is totally similar to fire, then it will also be exempt for concealed items. So afterward I need to go back to those primary categories that I threw away and look at them on the level of exemptions. On the level of liability, all the primary categories don’t interest me, and none of the traits interest me. Anything that is your property and whose safeguarding is upon you—you have to pay. But there are exemptions: for a person, for vessels, for concealed items—each primary category and its exemptions. Now with a derivative category, if you want to know which exemptions it has, look. If there is some primary category to which it is completely similar, then you can learn the exemptions from there for the derivative as well. And if it is not completely similar to a primary category, then only the liability remains without the exemptions, right? Then they’re good altogether. That is the view of those who are uncertain, okay?

By contrast, according to the “some of the great authorities,” the claim is that there is no such rule saying that anything that is your property you must pay for. You have four primary categories, and each time you need to see whether you can learn your damager from two of them. If you can learn it from the two of them, no problem. But concealed items you won’t be able to learn, because in fire one is not liable for concealed items. For vessels you won’t be able to learn, because with a pit one is not liable for vessels. So for concealed items and vessels, you don’t have two teachers, and therefore you have no source from which to impose liability for concealed items and vessels. According to this conception, the exemptions are not exemptions learned from the primary categories. On the contrary: we simply never learned that there is liability. It’s not that I need to learn that I’m exempt; rather, I have no teaching that I am liable. Therefore I am exempt. This is a different conception of the essence of the exemptions in the primary categories of damages. Is the exemption a separate rule, or is it simply that the liability was never introduced with regard to the exempt case? With regard to that matter, the Torah’s liability requiring payment was never introduced. Or not—an exemption is a special exemption. You are liable to pay for everything, but there is an additional novelty that if such-and-such conditions are met, then you are exempt. That is the argument between those who are uncertain and the Shakh and Degulim. But both understand that this is a common denominator. And the Rosh apparently understands that this is conceptual construction.

I am basically taking the concept of “another force is involved in it” from fire, connecting it to pit, which is basically a damager in that one stumbles over it, and those two together create for me the next damager. Even though there is nothing shared between fire and pit, if I’m not talking about “your property and its safeguarding is upon you,” because according to this conception I don’t have that. So there is nothing shared. That is the general rule, not a specific trait. In the specific traits there is nothing special, so according to the Rosh this really is that picture—conceptual construction.

Could we have said something like a kind of pit? Something reversed, as it were? That one is liable only as fire? That it shares fire and pit? I didn’t understand. Could we have said a type of pit? Or something reversed, as it were? That one is liable only as fire? That it shares fire and pit? In truth it’s not similar to fire. After all, its damage is like a pit: there is something lying on the ground, someone stumbles over it and falls and is injured. And the fact that both are variable—that’s not according to two variables, because two variables means one variable that this has and one variable that that has. No, obviously. And it’s not exhausted by variables—that’s exactly the point. Like I said about winnowing and throwing: winnowing is an act of separation, and with spitting that doesn’t exist. It’s not a trait. It just means that it’s not from the family of winnowing; you can’t learn from winnowing. All you can extract from winnowing is that the involvement of wind does not exempt. That’s all. But you don’t really learn this from winnowing—you learn only that from winnowing. Winnowing only comes to remove some side issue: there is wind involved here, so winnowing shows you that this shouldn’t bother you. Okay? So you take the involvement of the wind, connect it with the primary category of throwing, and then you get spitting. Same thing here: you take the involvement of wind from fire, and connect it to the damages of pit, and you get a pit created by wind and therefore liable. Okay?

Now look at something nice. Let’s go back for a moment to the wording of the Talmud / Talmudic text; I read it earlier. Look how the Talmud phrases it. “Actually, that he turned them over, and they are not similar to a pit. What is there about a pit? That no other force is involved in it. Will you say that about these, where another force is involved in them? Fire will prove it.” Exactly like a common denominator, right? “What is there about fire? That its way is to go and cause damage. Pit will prove it. And the law returns.” What does “and the law returns” mean? Wait, let’s continue. “This is not like that, and that is not like this; the common denominator in them is that they are your property and their safeguarding is upon you; so too anything that is your property and whose safeguarding is upon you, you are liable to pay.” Again, nothing at all is written in “and the law returns.” So one could say, okay, the Mishnah abbreviated, as though it did not want to bring this whole long sentence, since we already know it from other passages. It’s not conclusive proof, but it is an interesting indication. Because if, say, they had brought that sentence here, then it would be impossible to learn the Rosh the way I said. If they don’t bring that sentence, one can say it this way or that way. If they had brought the sentence, “the common denominator in them is such-and-such,” then one could not have said what I said in the Rosh. But still, the term in the Mishnah is troubling, because it says there “common denominator.” I think that’s just a habitual turn of phrase. “Habitual turn of phrase” means that “common denominator” means that you learn it from both of them. Or alternatively, it also appears on the other side.

Yes, no, it says like this: anything that is your property and whose safeguarding is upon you, you are liable to pay. That is the common denominator of all the primary categories. Anything that is your property and whose safeguarding is upon you. And I read that straightforwardly. And I think: why do we need to bring this? I know it myself. We already have examples, so why do we need the rule? So he says that it comes to include—not that that’s what is written there. What is written there is the rule: anything that is your property and whose safeguarding is upon you, you are liable to pay. Why did the Mishnah bring the rule if it’s unnecessary? I have the examples. They brought it in order to teach that there are things that are learned as derivatives of two primary categories. And that is not written in the latter clause; the latter clause teaches only that it exists from the fact that they brought it. Okay? So maybe. In any case, according to the Rosh it’s fairly clear that this is conceptual construction. However he reads the Mishnah, it’s fairly clear.

And here is the implication, the difference. Here there is already a practical legal difference between whether this is conceptual construction or a common denominator. Regarding whether there are special rules in the two primary categories, there will be a difference. If it is a common denominator, then the two special rules either both apply or both do not apply, depending on whether you go like those who are uncertain or not. But it cannot be that one does and the other does not. But if it is conceptual construction, then of course it can. The essential element will transfer its rules to the derivative, while the side element, which only came to remove the involvement of the wind, came to remove a side problem—its exemptions are not relevant. Okay? So I think that’s a nice example, a nice example.

Tell me, if the exemptions are based on the specific element in fire and in pit? Again. The exemptions are based on the specific element in fire and in pit. The specific learning we made from fire—that it yields the exemption of concealed items and the like—that is the reason there is the exemption. The exemption is for fire. I didn’t understand what you mean by the specific element of fire. We said that with fire, the reason fire was compared to a knife when they come to rest—what is the stringency of fire and what is the leniency of fire? Is there no possibility that we would learn something specific דווקא from the secondary element, and from that infer an exemption that would also exist in one’s stone, knife, and load? You can’t say that one’s stone, knife, and load that fell and caused damage after they came to rest are liable as fire. It’s not fire. Fire moves and burns. This is simply, essentially, not fire. It’s not some trait or another. It’s simply not that. And the exemption that we grant to fire may be because of a feature of this thing, that it is fire. Because another force is involved in it. And then you would say that with one’s stone, knife, and load too, since another force is involved in them, yes. But in fire, the other force involved is at the stage of the damage. In one’s stone, knife, and load, the other force involved is at the stage of the creation of the damager. After all, the damage itself was created after they were already on the ground and someone stumbled over them. How did they get to the ground? They got to the ground by the wind. So there is a basis for exemption here, but it really is not similar to fire. The damage was not done with the help of the wind. If, say, it had hit someone on the head, then it would be like fire? What are you saying? If while they were moving they caused damage, then that would be fire. Therefore the Talmud says no—we need to say that after they came to rest they caused damage. Okay?

Look at the Yam Shel Shlomo there. “Therefore it seems to me certainly that he did not declare them ownerless according to Shmuel, even though he held that we learned it from pit. In any event, when you are compelled to learn it from the common side, we give them the leniency of every common side by the force of the rule ‘it is sufficient for that which is derived from the law to be like that from which it is derived.’” Meaning, if we are talking about where he did not declare them ownerless, then we learn it from pit. And what will the exemptions be? The two exemptions—both of pit and of fire. Why? No, sorry, if we are talking about where he did not declare them ownerless, meaning he left it there and did not declare it ownerless—then pit. So according to Shmuel it is talking about pit. Yes, according to Shmuel it is talking about pit. And the “another force is involved in it” is something we neutralize from fire. And then he says, “when you are compelled to learn it from the common side, we give them the leniency of every common side by the force of ‘it is sufficient for that which is derived from the law to be like that from which it is derived.’” What does that mean? On the face of it, it sounds like the great authorities. You give them the most lenient thing possible from your two teachers, because it is sufficient for that which is derived from the law to be like that from which it is derived. You cannot learn something in the derived case more than what exists in the teachers. Okay?

“Only where he declared them ownerless—since it is completely similar to a pit, for an ordinary pit is ownerless and an obstacle to others, these too are called a pit. But when you came to distinguish between pit and pit, in this you raised the challenge that another force is involved in it. Therefore the proof from ox or fire helps to remove the challenge, showing that it does not prevent liability. If so, it follows automatically that they too are included in the name ‘pit’ written in the Torah.” That is exactly the explanation, right? He is explaining the Rosh. So he says even according to the Rosh—even according to the Rosh himself, which is generally how we rule Jewish law, like the Rosh—he says that basically we learn it from pit. Fire comes only to neutralize the fact that another force is involved in it. Don’t be bothered by that. Another force being involved does not exempt. That I see from fire. Once I understood that, now finally I ask myself: what kind of damager is this? It is not a combination of fire and pit. It is a pit; it is simply a pit. Okay? Therefore it is clear that it will have the leniencies of pit. That is what the Rosh says.

But the Yam Shel Shlomo adds a novel point: what happens if he did not declare it ownerless? They fell from the roof and he did not declare them ownerless. There we said as follows. According to Rav, it cannot be pit, because a pit has to be ownerless. But according to Shmuel, even something not ownerless is a pit. He says yes, but it’s not entirely like a pit, because generally the normal way of a pit is that it is ownerless. So even according to Shmuel it is not completely similar to a pit. Therefore according to Shmuel, in such a case there will be both leniencies, of fire and of pit. Because you cannot compare it completely to a pit. And then once you learn it from both fire and pit—“it is sufficient for that which is derived from the law to be like that from which it is derived”—so it will have both leniencies.

The whole move of the Yam Shel Shlomo here is said within the approach of the Rosh. He does not bring the dispute between the Rosh and the great authorities. Everything he says here is within the approach of the Rosh. He says that even according to the Rosh, when the pit is ownerless—one’s stone, knife, and load, sorry, are ownerless—then it really is a pit, completely a pit. The whole problem is that another force was involved, and “fire will prove” that that doesn’t matter. Bottom line, it remains a pit. So the only exemptions it has are the exemptions of pit, not the exemptions of fire. But when he did not declare it ownerless, then the Talmud says that according to Shmuel even something not ownerless is a pit. Seemingly I would have expected it to be the same as according to Rav when he did declare it ownerless. According to Shmuel too, when he did not declare it ownerless, same thing—a combination of fire and pit, but basically a pit, with fire only removing the fact that another force is involved. He says no. In the case according to Shmuel where he did not declare them ownerless, the Rosh would hold like “some of the great authorities.” Why? Because when the thing is not ownerless, says Shmuel, true, it is most similar to a pit, but it is not completely a pit, because in the simple sense a pit is ownerless. So you cannot say that it is completely a pit. So either you say that there are no exemptions in it at all, like those who are uncertain, but he says no—it is like “some of the great authorities,” because “it is sufficient for that which is derived from the law to be like that from which it is derived.” All you can do is impose liability for what both pit and fire are liable for, because you don’t know to what to compare it completely. It’s not completely a pit and certainly not fire. I don’t know what to do with it. Since I don’t know what to do with it, the burden of proof is on the claimant. You want me to pay you? Bring proof that I am liable. “It is sufficient for that which is derived from the law to be like that from which it is derived.” Pit and fire obligate you neither for concealed items nor for vessels. You have no way at all to learn that one’s stone, knife, and load should be liable either for concealed items or for vessels. Therefore it will be exempt in both. Okay?

This bothers me a bit, because from here it sounds like the neutral situation is that we say everything is exempt. Meaning, there is an exemption both of fire and of pit. But in fire we need a certain element to teach that it is exempt. I didn’t understand. Say, with fire we need—I don’t remember—another force being involved in order to learn that it is exempt. Not in order to learn—the Torah says it is exempt. You don’t need to learn that it is exempt. Right, okay. You are only saying why it is exempt, maybe because another force is involved in it. So if that’s the case, then here too it should be exempt for concealed items. I said I don’t know, not necessarily. Maybe yes, maybe no—I don’t know. In order to learn, you need to be certain. The starting assumption is that you are basically liable; in order to exempt, you need to learn. So he said no—I have no way to learn from fire, because I am not sure that that really is the foundation of the exemption in fire. So it will indeed be liable. Meaning, the default is that it will be liable because it was not said that it is exempt. Right, well. But he says the opposite. That is… No, it will be liable for concealed items, it will be exempt… No, “it is sufficient for that which is derived from the law to be like that from which it is derived” is where he did not declare them ownerless. Okay, because where he did not declare them ownerless, it is not similar to pit either. Not only is it not similar to fire; it is also not similar to pit. But it does not have the element that another force is involved. Yes. Okay, so I need to assume that that is the reason there is an exemption. No, I don’t know what the reason is. No, in order to exempt I have to assume that. Why? I don’t know, maybe it’s something else. For example, maybe because fire is not his property—“his fire is because of his arrows”—and there is a dispute between Reish Lakish and Rabbi Yohanan, and one says it’s not “his fire is because of his arrows” because there is no ownership. Rabbi Yohanan says it’s not “his fire is because of his property,” fire is not damaging property, because fire is not his property, there is no substance there. But here it is property, and a pit that he did not declare ownerless is also property. I can say, okay, so there in fire there is an exemption and here there isn’t. Right, but that’s not what the Yam Shel Shlomo says at the beginning. What does he say? He says “it is sufficient for that which is derived from the law to be like that from which it is derived”—it has both the exemptions of pit and the exemptions of fire. But why would he take the exemption of fire—that’s what I don’t understand—if I don’t know exactly why fire has an exemption? Because you have no source from which to learn it. On the contrary, he assumes the opposite. He says: after all, you need to learn the liability in the derivative. Now from where will you learn liability for concealed items? Exactly—that’s what I asked. Is the default that everything is liable and I need to learn exemption, or the opposite? Yes. You need to learn in order to impose liability. But it doesn’t sound like that. Okay. No, on the contrary, “it is sufficient for that which is derived from the law to be like that from which it is derived” is exactly that. In order to learn liability, you cannot go beyond your teacher. And you understand that I am going to learn liabilities, and I reduce it to what exists in the teacher—what is there, is there; what is not there, is not there. I cannot do more than what exists in the teacher. Okay, fine. For me, I always understand the exemption as something special to fire, and for that I need some kind of novelty in order to learn the exemption, not the other way around. No, no. On the contrary, the whole idea here is that I need to learn the liability. That is what he says. You have no source from which to learn the liability.

Now I want to bring another example. There is an Or Sameach in the laws of the Yom Kippur service that says as follows. Maimonides writes in the laws of the Yom Kippur service, Maimonides writes like this: “The service of all these fifteen animals offered on this day, Yom Kippur, is performed only by the High Priest. Whether he is a priest anointed with the anointing oil or one installed by wearing the garments. And if it was the Sabbath, even the additional offering of the Sabbath is offered only by the High Priest. And likewise all the other services of this day, such as burning the daily incense and preparing the lamps, all are done by the High Priest who is married, as it says: ‘And he shall atone for himself and for his household’—‘his household,’ that is his wife.” Among these things he also says that if Yom Kippur falls on the Sabbath, then the additional offerings of the Sabbath too—yes, the rule is this: services in the Temple are done by an ordinary priest. On Yom Kippur, the services of the day are done by the High Priest. The additional Sabbath offerings on a regular Sabbath are done by an ordinary priest. If Yom Kippur falls on the Sabbath, there are two kinds of sacrifices. There are the sacrifices of Yom Kippur and there are the sacrifices of the Sabbath. I would have expected that the sacrifices of Yom Kippur would be done by the High Priest, while the additional Sabbath offerings could be done by an ordinary priest. The High Priest also could, but does not have to. Maimonides says no—even the additional Sabbath offerings are done by the High Priest. All the services of the day are by the High Priest. The question is why.

The Or Sameach says: “And behold, our master’s opinion is that even the additional Sabbath offering is by the High Priest, even though it is only by happenstance, because by happenstance Yom Kippur falls on the Sabbath.” It is not essential to this day; it just happened to fall on the Sabbath. So I would have expected the additional Sabbath offerings to be brought by an ordinary priest, not by the High Priest. “And it is not one of the offerings of the day. It appears that our master understood the language of the Talmud: ‘additional offerings and after the morning continual offering’ and so on, concerning all the additional offerings, even those of the Sabbath. And perhaps our master had something explicit somewhere. And this is reasonable, what Maimonides says, for we say in the chapter Kol HaTadir: ‘Is it that the new moon, whose additional offerings are its own, helps for the additional offerings of the Sabbath or does it not help?’ See there—behold, that it is sanctified with the sanctity of the new moon.” Meaning, when the Sabbath is also the new moon, then the additional Sabbath offerings are sanctified with the sanctity of the new moon. Okay? “And so too here, the additional Sabbath offerings are sanctified with the sanctity of Yom Kippur, and its commandment is with the High Priest, like the continual offerings.”

And from this he draws a conclusion: “And so it seems to me that the sanctity of Yom Kippur takes effect upon the Sabbath as well, to sanctify it in cessation from all eating; the sanctity of Yom Kippur also helps for the Sabbath so that it is sanctified in self-affliction. Therefore, on Yom Kippur that falls on the Sabbath, for a dangerously ill person who needs to eat, I rule that he does not recite kiddush also for the Sabbath, and this is the sanctity of the Sabbath there—that one should not eat on it—and this is obvious.” “Obvious” it is not, because that is a major dispute among the halakhic authorities, but that is his claim.

He derives from this Maimonides about the additional Sabbath offerings a practical Jewish-law conclusion for our times. What happens if there is a dangerously ill person whom the doctor permits to eat on Yom Kippur—indeed, it is a commandment for him to eat on Yom Kippur—and he needs to eat. Now the question is whether to make kiddush. He cannot eat without kiddush. Sabbath. By the way, there are people who ask this even about Yom Kippur that does not fall on the Sabbath. If you eat, should you make kiddush? The kiddush of Yom Kippur—it is also a festival. True, usually we do not eat on it, but you are eating on it. If you are eating, make kiddush—it is a festival. So he… In principle you are not supposed to eat, so the question of kiddush does not arise. But if you are sick and you do have to eat, why shouldn’t you make kiddush? There is an obligation to make kiddush by virtue of the Sabbath. The Or Sameach says no. Yom Kippur that falls on the Sabbath—the Sabbath itself is sanctified with the sanctity of Yom Kippur. And on that Sabbath, its sanctity is not to eat. And as a result, they did not institute kiddush there at all. How does this emerge from Maimonides about the additional Sabbath offerings? The same idea. He says basically the laws of Yom Kippur swallow up the laws of the Sabbath. Yom Kippur swallowed the Sabbath.

In other words, I would formulate it like this: we usually understand that when Yom Kippur falls on the Sabbath, it is basically a combination of two things. It is Yom Kippur and Sabbath on one day. The laws of Yom Kippur apply here, the laws of the Sabbath apply here. Sometimes there is a clash, but in principle these laws apply here and those laws apply here, like one who is half-slave and half-free. One who is half-slave and half-free has upon her the laws of a slave and the laws of a free woman. Okay? On the side of the slavery in her and on the side of the freedom in her. So too with Yom Kippur: it has the laws of the Sabbath by virtue of the Sabbath aspect in it, and the laws of Yom Kippur by virtue of the Yom Kippur aspect in it. The Or Sameach says no. Yom Kippur that falls on the Sabbath is not a combination of Yom Kippur together with Sabbath. It is a day of a third type, called Yom Kippur that falls on the Sabbath. That is its name. We describe it in the language of Yom Kippur and Sabbath joined together, but really no—that’s just a name. In principle this is a day of a third type. It is not Yom Kippur and not Sabbath. How do we determine what applies on it, meaning what the Jewish law says about it? Interesting point.

When will I go by Yom Kippur? When there is no contradiction, then I will apply both the laws of the Sabbath and the laws of Yom Kippur. For example, carrying. On Yom Kippur it is disputed, but there are views that there is no prohibition of carrying on Yom Kippur. On the Sabbath there is. So if Yom Kippur falls on the Sabbath, there will be a prohibition of carrying by virtue of the Sabbath aspect in it. There will be a prohibition of eating, even though on the Sabbath it is a commandment to eat, because of the Yom Kippur aspect in it. Right? There is no contradiction here. In both cases you simply go stringently according to both sides. When there is a contradiction, what do we do? I don’t know, one has to think who overrides whom; it’s not important now, but there is some rule. Here he says no. This is Yom Kippur that falls on the Sabbath—it is a day of a third type. It is not a combination of Yom Kippur plus Sabbath. It is a day of a third type.

Of course, its laws will be similar both to the laws of the Sabbath and to the laws of Yom Kippur because there is a connection between them, but it is basically a day of a third type. If you want, look at it as a derivative of Sabbath and Yom Kippur. Yom Kippur that falls on the Sabbath is basically a derivative of Sabbath plus Yom Kippur that I connected together. But the derivative is a conceptual construction of the two sides. I created here a day of a third type; I took something from here, something from there, connected them together—this is a day of a third type. It is not a combination of those two things pasted onto each other. In the language of the Rogatchover this is called a blended combination and not a neighboring combination. They are not neighbors of each other, Sabbath and Yom Kippur, each having its own place and they are neighbors, living together. No. This is a blended combination—they are mixed and merged and become something new, something different.

What? Right? Seemingly, someone who violated the Sabbath and Yom Kippur—someone who, say, did prohibited labor on the Sabbath on Yom Kippur that fell on the Sabbath—there would have been room to say that he violated the prohibition of the Sabbath and he violated the prohibition of Yom Kippur. Right? According to this Or Sameach, in my opinion, one sin-offering. Because it is a day of a third type, and you need to discuss what applies to it. Sometimes you learn it from the Sabbath, sometimes you learn it from Yom Kippur, but after you have learned it, that is the law of that day. It is not a combination of Sabbath and Yom Kippur. It is basically conceptual construction like I described in the earlier examples. On Yom Kippur there is no sin-offering, so it’s not… But I mean on the conceptual level, yes. Sin-offering and lashes. And here no, he claims no lashes. There are no lashes because it’s unwitting. But if it’s deliberate then there’s no sin-offering. In short, one has to think what the exact situation would be. In principle he should be liable for two—he violated two prohibitions. Say a positive commandment pushes aside a prohibition. Here there are two prohibitions, not one. According to the Or Sameach, one, not two. Okay? So that is the conception.

There is a responsa of Tzofnat Paneach… But this is not exactly conceptual construction, because conceptual construction is where you combine the two, as it were. Here it seems to me that Yom Kippur turns everything into one thing. Right. There too it turns into one thing. It’s a new labor that has components from this and components from that. In this case I put all of Yom Kippur and all of Sabbath in, not half of Yom Kippur and half of Sabbath. Yes, but it still basically means I constructed from the two of them a day of a third type. Yes, but they become something else. Conceptual construction is still in both of them. But it is still a third thing. It is a third thing composed half of this and half of that. And here it is composed of all of this and all of that. But it is still conceptual construction.

The Tzofnat Paneach, in a responsum in section 2, discusses what happens in… He says like this: “I have now received his letter, and I am writing because of what was stated in Sanhedrin 91,” he discusses the category of a Festival that falls on the Sabbath. The question was: if one performed labor for food preparation on a Festival that falls on the Sabbath, and they warned him because of Festival, is he liable also because of Festival? A Festival falls on the Sabbath. Someone did labor. Okay? So the question is whether he is liable both to stoning and to lashes—stoning for Sabbath and lashes for the Festival. They warned him both because of the prohibition of the Festival and because of the prohibition of the Sabbath. The question is whether he is liable for both, exactly the example we discussed earlier about two punishments—right, Yom Kippur and Sabbath. So he says there is great length on this, whether the Torah taught us some novelty, if it is only where he acted as prescribed, and this depends on that dispute in the Jerusalem Talmud about whether one is counted among the hundred within the bone—it’s not important, I’m not going to go into all his ideas now.

He says as follows, just at the end look here: “And I elaborated a great deal regarding a High Priest who became impure to his relatives, whether he is liable also because of an ordinary priest if he was warned.” A High Priest became impure to his relatives. Now the question is this: for an ordinary priest it is permitted to become impure for relatives; for a High Priest it is forbidden. And regarding the High Priest who became impure to his relatives, it could be that he transgresses both the impurity prohibition of an ordinary priest and the impurity prohibition of a High Priest. We find two rules—he violated two prohibitions. Why? After all, for an ordinary priest it is permitted to become impure for relatives. Because now the ordinary priest aspect in him… Exactly. The ordinary priest aspect in him is subordinate to the High Priest aspect in him. But notice that his conclusion is that he violates two, not that he violates one in which they combine into a single thing, but that he violates two. Not the reasoning I gave earlier. And he is really talking about it differently.

He wants to make the following claim; let’s return to Festival and Sabbath and then you’ll understand it also with the priest. On a Festival we permit labor for food preparation, right? Labor for food preparation is permitted on a Festival; you can cook. Okay. What happens on a Festival that falls on the Sabbath? So I cooked. From the standpoint of the Festival, no problem—it’s permitted. From the standpoint of the Sabbath, it’s forbidden. But no—if this Festival fell on the Sabbath, then from the standpoint of the Sabbath aspect in it I cannot in any case cook, so why permit the Festival prohibition? The whole reason they permitted the Festival prohibition was to enable you to cook and eat, but on a Festival that falls on the Sabbath you won’t be able to do that anyway because of the Sabbath aspect in it, so here you do not have the permission even in the laws of the Festival. He says the same thing about a High Priest. For an ordinary priest they permitted becoming impure for relatives so that he could take care of them, but if he is a High Priest then even from the standpoint of the ordinary priest aspect in him they did not permit him this matter, because in any case he cannot do it from the standpoint of the High Priest aspect in him, so why permit him the impurity prohibition of an ordinary priest? There is no reason to permit it, because in any case we do not want him to do it due to the High Priest aspect in him. That is a different reasoning from what I said. According to what I said earlier, I would say here that once he is a High Priest, he is no longer a High Priest plus an ordinary priest. He is a new kind of being, called High Priest. It is not two things; he forgot that he was an ordinary priest. Okay? Or a Festival that falls on the Sabbath—you could say that this is a day of a third type, as we saw in the Or Sameach. They were both rabbis from the same city, the Or Sameach and the Tzofnat Paneach. He was the rabbi of the Hasidim and he was the rabbi of the Mitnagdim in Dvinsk. Tzofnat Paneach—that’s the Rogatchover? What? That’s the Meshekh Chokhmah? Yes, yes. The Or Sameach is the Meshekh Chokhmah. When he died, the Rogatchover eulogized him: “He had only just begun to know how to learn, and already he died, poor man.”

So in short, the claim is that according to what the Or Sameach said above, one could have said here something different from what the Rogatchover argues. The claim is that a Festival that falls on the Sabbath is not a combination of Festival plus Sabbath; it is a day of a third type. Now we need to check what its laws are. Generally we will be stringent according to Sabbath and according to Festival, always stringently, but still in the end it will be only one. Because you desecrated one day, not two. So in the final analysis you will transgress on account of the Sabbath aspect in it, but not on account of the Festival aspect in it. Okay? Therefore that is the claim. If you connect it to that one day and those days are fused, then one could say that, as the Or Sameach said, it is not Yom Kippur plus Sabbath. It is a third day called Yom Kippur that falls on the Sabbath. So too Sukkot that falls on the Sabbath—it is not Sukkot plus Sabbath; it is Sukkot that falls on the Sabbath, and it has various laws, but the laws are the laws of that day. Single laws; they are not double laws on that day. It is not like one who is half-slave and half-free. There it is a neighboring combination. She has a slave side and a free side, and somehow they both exist in the same body. But here, no. Those two things joined together and created a new reality.

There is another example. The Talmud discusses—you know that with an innocuous ox, we talked about an innocuous ox earlier—the Talmud discusses what happens with an innocuous ox. If an innocuous ox gores, then it is liable for half damages from its own body. You collect from the body of the goring ox. An ox forewarned, full damages from the owner’s assets. Meaning you pay money not from the body of the ox. Okay? But there is a position in the Talmud, a dispute in the Talmud, called “the aspect of innocuousness remains in its place.” What does that mean? When the innocuous ox becomes forewarned, half of it is still an innocuous ox; only an additional layer of forewarned status is added to it. So if it gores, then half the damages will be collected from its body like an innocuous ox, and another half will be collected from the owner’s assets like a forewarned ox. The forewarned ox does not replace the innocuous ox; it only completes it so that it is an ox that has another half. The second half is forewarned, but the first half is innocuous. That is somewhat like what the Rogatchover says here about the High Priest. The High Priest is not a personality of a new type. It is an ordinary priest plus another level, another half added to him. Okay? The same discussion basically also arises there in the Rogatchover.

That would have been similar to Yom Kippur if, say, in an ordinary priest there were a prohibition that is not in a High Priest, and then the prohibition of the ordinary priest becomes a prohibition of the High Priest. That would be like Yom Kippur. Or simply, after all, in the end, say, on Yom Kippur the dominant thing is Yom Kippur. Say all the prohibitions of the Sabbath are swallowed into Yom Kippur. No, not all. There will be things that the Sabbath determines. For example, carrying—the Sabbath determines that. Because on Yom Kippur there is no prohibition of carrying. There are stringencies of the Sabbath and stringencies of Yom Kippur, but there is a prohibition of carrying learned from the Sabbath. That prohibition is on Yom Kippur that falls on the Sabbath—that it is forbidden to carry on it. We learn that from the Sabbath aspect in it, but… Yes, like the additional Sabbath offering, but it will not become a Yom Kippur offering. Right. And not the reverse, say. No, it will not become an offering of Yom Kippur that falls on the Sabbath—not an offering of Yom Kippur. Okay, one could say that just as the High Priest swallows the ordinary priest, Yom Kippur swallows the Sabbath, but Yom Kippur is the dominant one. That’s what I’m saying, but a High Priest contains an ordinary priest, therefore he swallows him. Yom Kippur and Sabbath are two things that have independent existence; neither is contained within the other. When you connect them, neither swallows the other. Rather, they join together into a day of a third type. No, but the offerings—say the offerings of Yom Kippur do not become offerings of the Sabbath, and the offerings of the Sabbath… No, the offerings of the Sabbath do not become offerings of Yom Kippur. Yes, because the sanctity… No, they become offerings of Yom Kippur that falls on the Sabbath. From Sabbath I learn that I need to bring here also the additional Sabbath offerings, but those additional offerings in the end are offerings of Yom Kippur that falls on the Sabbath. There is no plain Yom Kippur here now. There is Yom Kippur that falls on the Sabbath. It is a new day. It is a different kind of day. It’s only that I learn its laws from the laws of the Sabbath or from the laws of Yom Kippur, but once I have learned them, they are laws on this day, on Yom Kippur that falls on the Sabbath. Yes, not necessarily, okay, one could simply… No, again, not necessary; I’m only bringing an example of this mode of thinking. Okay? Fine, we’ll stop here. Next week we’ll do a somewhat more complex conceptual construction. A more complex passage.