The General Principles of Melachot – Lesson 18
This transcription was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
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Table of Contents
- Moving to the topic of mit’asek and its relation to previous categories
- The Mishnah in Keritot: examples of mit’asek and the scriptural source
- The Talmud in Keritot: mit’asek with forbidden fats and sexual prohibitions versus Sabbath
- The solutions of Rava and Abaye: intending to cut something detached and ending up cutting something attached
- Mit’asek as a concept not unique to Sabbath and its connection to melekhet machshevet
- The distinction between shogeg and mit’asek and the claim that mit’asek is “less than shogeg”
- Mit’asek as a combination of shogeg and unintentional action
- Rashi on Shabbat 72 and in Keritot: the criterion of “something else” versus “the same thing”
- Mit’asek in sexual prohibitions and the fine distinction between a mistake of identity and a mistake of substitution
- A proposed indication: an observational dispute and the difference of “in the object itself”
- A conceptual illustration: deception as a combination of concepts and the parallel to mit’asek
- A philosophical framing: essential versus incidental features as the basis for distinguishing shogeg from mit’asek
Summary
General Overview
The lecture moves from the discussions of unintentional action, a labor not needed for its own purpose, and shogeg to the category of mit’asek, arguing that the boundaries between them are not sharp, and that there are disputes in the Talmud and among the medieval authorities (Rishonim) as to whether a given situation is classified as mit’asek, as unintentional action, or as shogeg. The topic opens with the Mishnah in Keritot, which presents Rabbi Yehoshua’s exemption and Rabbi Eliezer’s liability for a sin-offering in cases where one intended to pick one species and ended up picking another, and Rabbi Shimon grounds Rabbi Yehoshua’s exemption in the exposition of the verse “with which he sinned” as excluding mit’asek. It then becomes clear that mit’asek is exempt on the Sabbath but liable in the case of forbidden fats and sexual prohibitions because “he derived benefit,” and that the main distinction between shogeg and mit’asek depends on whether the person performs the action he thinks he is performing and is only mistaken about the circumstances, or whether he is mistaken about the very action/object itself, such that this is not a substantive prohibition at all and not merely an exemption from punishment. This is connected to philosophical questions of essential versus incidental features.
Moving to the topic of mit’asek and its relation to previous categories
The lecturer presents mit’asek as a category that can resemble both unintentional action and shogeg, and formulates the central question as the relation between mit’asek and those two categories. He argues that there are cases where different sources label the same situation differently, from which it emerges that the line between the definitions is not sharp. He also connects the difficulty to a philosophical problem of definition and of distinguishing essential from accidental components.
The Mishnah in Keritot: examples of mit’asek and the scriptural source
The Mishnah cites Rabbi Yehuda with cases where one intended to pick figs and ended up picking grapes, or vice versa, and black ones but picked white ones, or vice versa; Rabbi Eliezer obligates a sin-offering and Rabbi Yehoshua exempts. Rabbi Shimon says, “I wonder whether Rabbi Yehoshua exempted in that case,” and grounds the exemption in the exposition of “with which he sinned” as excluding mit’asek. From here both cases defined as mit’asek and a biblical source for its exemption are presented, based on the formulation that the mit’asek “did not sin with it” in a certain sense.
The Talmud in Keritot: mit’asek with forbidden fats and sexual prohibitions versus Sabbath
The Talmud asks, “Mit’asek in what case?” and clarifies that if we are speaking of forbidden fats and sexual prohibitions, mit’asek is liable because “he derived benefit,” in accordance with “Rav Nachman said in the name of Shmuel.” The Talmud states that on the Sabbath mit’asek is exempt because “the Torah prohibited intentional, thoughtful labor,” but then a difficulty arises: if the exemption on the Sabbath stems from the principles of melekhet machshevet, learned from the analogy to the Tabernacle, why is the verse “with which he sinned” needed? A dilemma is created: the verse is unnecessary neither for forbidden fats and sexual prohibitions, because there there is no exemption, nor for Sabbath, because there one could apparently exempt even without a verse.
The solutions of Rava and Abaye: intending to cut something detached and ending up cutting something attached
Rava explains the need for the verse in a case where “he intended to cut something detached and cut something attached,” from which it emerges that in his view the act is still defined as melekhet machshevet, and nevertheless there is an exemption of mit’asek by force of the verse. Abaye explains the case as one where “he intended to lift something detached and cut something attached,” and distinguishes between intending to cut and having no intention to cut. Abaye obligates in the case of “he intended to cut something detached and cut something attached,” because “after all, he intended some cutting,” while Rava exempts because “after all, he did not intend the prohibited cutting.” Both agree that both situations are defined as melekhet machshevet; the dispute is whether the exemption of mit’asek applies when there was a general intention to cut, but not to the prohibited cutting.
Mit’asek as a concept not unique to Sabbath and its connection to melekhet machshevet
The lecturer emphasizes that the laws of melekhet machshevet are unique to labor prohibitions on the Sabbath, whereas the exemption of mit’asek, whose source is “with which he sinned,” is a general exemption throughout the whole Torah in cases that are “truly mit’asek.” He presents a structure similar to what was said about unintentional action, including a position attributed to “Rabbi Chaim and other later authorities” according to which unintentional action on the Sabbath and unintentional action throughout the Torah are two different prohibitions, and even Rabbi Chaim’s formulation that this is “awareness” as opposed to “intention or desire.” On that basis, a distinction is built between exemptions that stem from melekhet machshevet on the Sabbath and the general exemption of mit’asek.
The distinction between shogeg and mit’asek and the claim that mit’asek is “less than shogeg”
The lecturer sharpens the point that shogeg is a claim for mitigation of punishment, but does not negate the prohibition itself; therefore shogeg requires a sin-offering even though there is no stoning. He argues that mit’asek is not merely a claim for mitigating punishment, but a state in which “one who acted as mit’asek did not violate a prohibition,” and therefore there is no sin-offering either. He presents unintentional action as a category in which there is no substantive prohibition and not merely a claim about culpability, and illustrates this with an analogy about shooting at a target range and killing a person, to show that the claim “I didn’t mean that” does not exempt from punishment unless the substantive definition of the prohibition changes.
Mit’asek as a combination of shogeg and unintentional action
The lecturer argues that mit’asek always contains an element of mistake, but not only mistake; it also has a component that makes it resemble unintentional action, in that it redefines the prohibition itself so that there is no prohibition at all. He formulates this as a combination, or “product,” of shogeg and unintentional action, and distinguishes it from ordinary unintentional action, where there is no mistake at all, by saying that in mit’asek the lack of awareness regarding the prohibited action joins the lack of intention toward it. He arranges a hierarchy in which shogeg is presented as more severe, because the act itself is intended and clear to the person and only circumstantial information is missing, while mit’asek is lighter because the prohibited act itself is not the act the person knows himself to be doing.
Rashi on Shabbat 72 and in Keritot: the criterion of “something else” versus “the same thing”
Rashi on Shabbat 72 explains “he intended to lift something detached” as “a knife fell into a vegetable patch and he intended to lift it,” thereby setting up the case with two objects: he intended to lift the knife, but in practice attached produce was cut. Rashi requires that mit’asek involve “he was occupied with one thing and did this thing,” and distinguishes it from shogeg, which is when “he intended that, but erred, for he thought today was not the Sabbath, or he thought this labor was permitted,” whereas mit’asek is when “he was occupied with lifting, not with cutting.” Rashi in Keritot describes mit’asek in the case of forbidden fat as when there is forbidden fat and permitted fat before him, and he intends the permitted fat but his hand goes to the forbidden fat, or when there are “forbidden fat and forbidden fat before him” and he thinks one is permitted fat and intends one but eats the other, and distinguishes this from shogeg, where he intends that very piece itself but is mistaken about its nature.
Mit’asek in sexual prohibitions and the fine distinction between a mistake of identity and a mistake of substitution
Rashi describes mit’asek in sexual prohibitions in a case where “his sister and his wife were before him, and his wife moved away and he did not know, and his sister came in her place,” and distinguishes that from shogeg, where “he intended this very woman and thought she was his wife.” The lecturer points to the subtlety: a mistake about the identity of the woman, when there was no actual substitution, is classified as shogeg, whereas substitution of the object toward which he directed himself is considered mit’asek. He presents this subtlety as something that makes it difficult to define a sharp criterion, and suggests that the dispute between Abaye and Rava regarding detached and attached may reflect a dispute over whether a change such as detached/attached is a substantial change in the object itself or merely a circumstantial change.
A proposed indication: an observational dispute and the difference of “in the object itself”
The lecturer suggests a tool of distinction according to which, when two outside observers can describe the act differently because of a property in the object or the action itself, that hints at an essential feature that defines “a different situation,” and therefore pushes in the direction of mit’asek. He proposes that detached and attached may appear to be a difference in the object itself, whereas wife and sister may be perceived as external information about the same body, but he acknowledges that the line is not sharp and that among the medieval authorities (Rishonim) and the Amoraim there are disputes over where to place it.
A conceptual illustration: deception as a combination of concepts and the parallel to mit’asek
The lecturer goes into some length about deception from Hullin 94b, including the examples of inviting someone to a meal when the invitee is overseas, and selling “a car without an engine” at a price that matches its value, emphasizing that this is not fraud but deception. He cites the view of Rabbi Chaim Palaggi that someone who looks at another person’s letter violates deception, and explains that deception is not “lying” but “stealing” information that belongs to the other person, distinguishing between falsehood about information that does not belong to the questioner and taking information that is “his” or “due to him.” He uses this to show how a halakhic concept can be built as a combination of two concepts, parallel to his claim that mit’asek is a combination of shogeg and unintentional action.
A philosophical framing: essential versus incidental features as the basis for distinguishing shogeg from mit’asek
The lecturer argues that Jewish law depends on the question of which features are considered essential to defining the act or the object, and which features are accidental or circumstantial. He illustrates this with questions about conversion and the emphasis on ritual commandments versus moral ones, and explains that the choice of criteria follows what is unique to the concept being defined, not what is more important. He concludes that when essential features of the thing itself are missing, the person is defined as mit’asek, whereas when only circumstantial information is missing, the person is defined as shogeg, and that disputes among Amoraim and medieval authorities (Rishonim) focus on the question of which features are essential and which are circumstantial.
Full Transcript
[Rabbi Michael Abraham] Okay, we’re moving on to mit’asek now. What’s your name? Remind me? Arnold. Okay. We’re moving on to mit’asek. Up to now, beyond the general introduction, we’ve basically seen primary categories and derivatives in the Sabbath prohibitions in general, what their logic is. So we talked about unintentional action, about a labor not needed for its own purpose, and about shogeg. Right? That was basically the topic this semester, except for the last time, when I gave a separate lecture on Holocaust Remembrance Day issues and the like. What I want to do now is move on to mit’asek, and the order is not accidental. In other words, mit’asek can resemble unintentional action, it can resemble shogeg, and really the main question is how to define mit’asek at all. What is its relation to shogeg? What is its relation to unintentional action? Mainly those two. And therefore I put those two clarifications first before getting into the question of mit’asek. You’ll see that in some cases the Talmud, or the medieval authorities (Rishonim), the later authorities (Acharonim), treat a certain situation as mit’asek, while others see it as unintentional action or as shogeg. And that means that the line is really a very, very blurry one. It seems to me that behind all this there’s also some philosophical problem, and I’ll comment on that a bit too. So I’m starting from Keritot, the Talmud in Keritot. Rabbi Yehuda said: even if he intended to pick figs and picked grapes, grapes and picked figs, black ones and picked white ones, white ones and picked black ones, Rabbi Eliezer obligates a sin-offering, and Rabbi Yehoshua exempts. Rabbi Shimon said: I wonder whether Rabbi Yehoshua exempted in that case. If so, why does it say, “with which he sinned”? To exclude mit’asek. Meaning, Rabbi Yehoshua exempts in these cases under the rule of mit’asek. That’s the first point. We have here cases that the Talmud defines as mit’asek. And the second point is that we have a source in the Torah for the exemption of mit’asek. It says “with which he sinned,” yes, “with which he sinned” to exclude mit’asek, because in some sense he did not sin with it. So we have both the exemption of mit’asek, the examples that define it, and its source. Okay, that’s what appears here. This is the Mishnah, actually. The Talmud says: “Mit’asek in what case?” Meaning, what kind of mit’asek are we talking about here? “If it is in the case of forbidden fats and sexual prohibitions, he is liable, for Rav Nachman said in the name of Shmuel: One who is mit’asek with forbidden fats and sexual prohibitions is liable, because he derived benefit. And if it is mit’asek on the Sabbath, he is exempt. What is the reason? The Torah prohibited intentional, thoughtful labor.” So what are we talking about when we learned the exemption of mit’asek from the verse? If this is mit’asek regarding forbidden fats and sexual prohibitions, or prohibitions involving pleasure, let’s say more generally, then it’s irrelevant. Why? There is no exemption there. In prohibitions involving pleasure there is no exemption of mit’asek. “One who is mit’asek with forbidden fats and sexual prohibitions is liable, because he derived benefit.” We’ll discuss that further, but first of all that’s the datum. In other words, once a person derived benefit from the prohibition, then even if he was mit’asek, he is not exempt. Okay, so what then? Is he intentional? Meaning, he’s not intentional, so what do we do with that? So it can’t be talking about mit’asek in forbidden fats and sexual prohibitions. Now, mit’asek on the Sabbath can’t be it either. Why? “The Torah prohibited intentional, thoughtful labor.” So what? Very good, intentional, thoughtful labor is what the Torah prohibited, and therefore mit’asek is exempt. What’s the problem? Right, we discussed melekhet machshevet, didn’t we? In the introductions. What is melekhet machshevet? Those who were here last semester actually—I forgot this was a different semester. Melekhet machshevet is a set of principles that distinguishes the laws of Sabbath from the rest of the Torah, and there are special rules there that appear only in the laws of Sabbath. And the reason is the connection between the Torah, the Sabbath, and the Tabernacle: just as intentional, thoughtful labor was done in the Tabernacle, so too what is prohibited on the Sabbath is intentional, thoughtful labor. Therefore, things that are not melekhet machshevet may not be prohibited, while on the other hand things that are melekhet machshevet may be prohibited even if elsewhere in the Torah we would exempt. We saw that this has lenient aspects and stringent aspects. So that’s really what’s going on here. The Talmud is saying that once this is an exemption based on melekhet machshevet, then what’s the problem? The problem is that no verse is needed. Exemptions of melekhet machshevet are learned from the analogy itself between Sabbath labors and the Tabernacle. So why bring me the verse “with which he sinned”? You don’t need a verse. I know that on the Sabbath, if it isn’t melekhet machshevet, then you’re exempt. In other words, if it’s mit’asek regarding forbidden fats and sexual prohibitions, then the exemption of mit’asek isn’t true there, because there simply is no exemption of mit’asek. On the Sabbath there is an exemption, but no source is needed, because that exemption is learned from melekhet machshevet, so no verse is necessary. So either way, where was this exemption stated, the one learned from the source, from the verse “with which he sinned”? The Talmud says: According to Rava, you can find it in a case such as one who intended to cut something detached and cut something attached. First of all, what area are we talking about? Sabbath labors, right? In terms of halakhic category. This is talking about Sabbath labors. Right, so what was the problem with Sabbath labors? That we don’t need a verse because we already have the exemption learned from melekhet machshevet. So why do we need a verse? Rava says yes, you do need a verse. When? When he intended to cut something detached and cut something attached. Why is a verse needed there? Because that does count as melekhet machshevet. There is intention here. In other words, the Talmud says that such a thing is indeed called melekhet machshevet. So if there were no verse, then under the laws of melekhet machshevet alone I would not exempt here. Such a thing is called melekhet machshevet. But since there is the verse “with which he sinned,” we nevertheless exempt. So in terms of the definition of melekhet machshevet, if he intended to cut something detached and cut something attached, that is melekhet machshevet. The exemption is only because of the verse about mit’asek. No, this is not a labor not needed for its own purpose. A labor not needed for its own purpose is when you dig a hole and need only its dirt. You perform one action, the very action you intended to do, but for a different purpose from the one normally associated with it. Here, you are performing an action you did not intend to do at all. You intended to cut this, and you cut that. So that is according to Rava. According to Abaye, you can find it in a case where he intended to lift something detached and cut something attached. What’s the difference? Right, here there was no intention to cut at all to begin with—he only intended to lift something detached and he cut something attached. No, if he had intended to lift something attached and cut something attached, that would be the same as intending to lift something detached. To lift it—what happened? It’s attached; I can still come and lift it. No, not uproot it. Say it’s a creeping plant, so it’s lying on the ground, and I lift it.
[Speaker B] Even if it’s
[Rabbi Michael Abraham] not possible—no, but if it isn’t possible, then how did he intend it? He knows what he’s planning to do. If he intended it, that means in principle such a thing can be done. I don’t know what it means to intend to do something impossible. In any event, it doesn’t matter. For our purposes, that’s the point. So what’s the difference between Abaye and Rava? With Rava, if he intended to cut something detached and cut something attached, then according to Abaye such a case probably would indeed be prohibited, right? Because he intended to cut in any event, he just thought it was detached and it turned out to be attached. So when is he exempt? Abaye tells us: when he did not intend to cut at all from the outset; he intended only to lift. That really is mit’asek—that’s already something else. So it comes out like this: according to Abaye, both when he intended to cut something detached and cut something attached, and when he intended to lift something detached and cut something attached, both are melekhet machshevet. There’s no problem here from the angle of melekhet machshevet. There can only be a problem of mit’asek, and even that problem, says Abaye, exists only where he did not intend to cut. But if from the outset he intended to cut, even though he thought it was detached and he cut something attached, that will be prohibited. By the way, very likely this wouldn’t incur stoning; it’s not an intentional violation, right? But it would be a shogeg violation, meaning he would have to bring a sin-offering. When we say here that it would be prohibited, we don’t mean he is considered intentional. He is not considered intentional. He did not intend to do the prohibited act, and he did not know he was doing a prohibited act. But the claim is that mit’asek is something less severe than shogeg—mit’asek does not even require an offering, not only that it doesn’t incur stoning. And here he says no, no—you would still require an offering. Because there was a prohibition here. Obviously punishment there would not be, yes? This is not intentional. But in any case, that is Abaye’s view. According to Rava, if he intended to cut something detached and cut something attached, and if he intended to lift something detached and cut something attached, in both cases he is probably exempt. Both are mit’asek. Okay? But both Abaye and Rava agree that in both of these cases, it is melekhet machshevet. Whether he intended to cut something detached and cut something attached, or intended to lift something detached and cut something attached, in both cases from the standpoint of melekhet machshevet this is melekhet machshevet. The only question is whether there is an exemption of mit’asek here. According to Abaye there is an exemption of mit’asek only when he intended to lift and cut, whereas according to Rava there is an exemption of mit’asek also when he intended to cut and cut, and of course also in Abaye’s case where he intended to lift and cut. Clear? That’s the dispute. For it was stated, and they both agreed: if he intended to lift something detached and cut something attached, he is exempt. What is the reason? Because he did not intend any cutting at all. Right—he did not intend to cut at all. If he intended to cut something detached and cut something attached—before it was lifting, and here it’s cutting—Abaye said he is liable, because after all he intended some cutting. Rava said he is exempt, because after all he did not intend prohibited cutting. Prohibited cutting, not prohibited cutting. Right, so this goes back over the point. We now discover another point here as well. We had examples of what mit’asek is, we had the Torah source “with which he sinned,” which is the source for the exemption of mit’asek, and now we have a discussion of the difference or relation between this and melekhet machshevet. And the Talmud says that once there is a verse exempting mit’asek, apparently from the standpoint of the exemptions of melekhet machshevet this doesn’t get you out. In other words, it wouldn’t be exempt under melekhet machshevet. In other words, in both cases—both Abaye’s and Rava’s—this is not exempt under the laws of melekhet machshevet. It is called melekhet machshevet. Okay? The question whether there will be an exemption of mit’asek can still be on the table. And here Abaye and Rava disagree. If he intended to lift and cut, there will certainly be an exemption of mit’asek. If he intended to cut and cut—there is a dispute between Abaye and Rava. Okay? There are other cases, for example a labor not needed for its own purpose—in the simple reading of the Talmud in Hagigah that is not melekhet machshevet at all. Yes?
[Speaker B] The Talmud sounds a bit like mit’asek can overlap with melekhet machshevet, meaning according to Rava you can find it—so there can be mit’asek that is not melekhet machshevet, in which case you don’t need the verse. It sounds like within mit’asek itself there could be levels. No. Okay, we still need to discuss what the difference is, but there is no exemption of melekhet machshevet in these cases. That’s clear, okay?
[Rabbi Michael Abraham] In the cases being discussed here. Now one implication of this—and you also see it from the discussion in the Talmud about forbidden fats and sexual prohibitions and so on—is that this is not a law specific to Sabbath. In other words, the laws of melekhet machshevet are laws stated only regarding labor prohibitions on the Sabbath. A labor not needed for its own purpose exists only regarding labor prohibitions on the Sabbath. Even unintentional action—we saw that even though it exists throughout the Torah, Rabbi Chaim and other later authorities explain that the prohibition of unintentional action throughout the Torah and the prohibition of unintentional action on the Sabbath are two different prohibitions. One is a prohibition within the framework of melekhet machshevet, and one is a prohibition throughout the Torah. And Rabbi Chaim even says that this is awareness, and that is intention or desire. In other words, their definitions too are different definitions. Okay? Now here too, with mit’asek, we have a similar structure. There are cases in which you will be exempt under the laws of Sabbath due to melekhet machshevet, and there are cases in which you will be exempt under the general laws of mit’asek, “with which he sinned.” What’s the difference? In the second type of case you will be exempt not only in the laws of Sabbath but in the whole Torah, because the exemption of mit’asek in cases that are truly mit’asek applies generally. There are cases on the Sabbath that are cases of melekhet machshevet, where the exemption exists only in the laws of Sabbath because in the laws of Sabbath there is an additional requirement that it be melekhet machshevet. In the rest of the Torah there would be no such exemption. But in principle, what we call the exemption of mit’asek is not an exemption in the laws of Sabbath—it is an exemption throughout the whole Torah. One who is mit’asek did not violate a prohibition. Okay? In the Talmud in Shabbat 72 as well, this dispute between Abaye and Rava is brought, and there the question arises as to the relation between this and shogeg. Or not there in the Talmud itself, but in Rashi. In Rashi there the question arises: what is the difference between this and shogeg? Let’s try to sharpen the difficulty a bit. At first glance, what we have here is just shogeg. In other words, he thought he was lifting or cutting something detached, and he was mistaken—it turned out to be attached. Why is this a category different from shogeg? And again, it is a different category. Why is it different? Because shogeg too is not punished, but a person who violated Sabbath in a state of shogeg did violate Sabbath by mistake, and is liable for a sin-offering. Right? Mit’asek—of course he isn’t liable to punishment. In that sense it’s like shogeg. At most he is shogeg. But no, he is less than shogeg. He isn’t even liable for an offering. In that sense there is no Sabbath prohibition here at all. Not that you are exempt because you were shogeg, exempt from stoning; rather there is no Sabbath prohibition here at all. Mit’asek is not an argument about punishment. One who was mit’asek did not commit a prohibition. Shogeg is an argument about punishment. In other words, if I was shogeg, I can’t be punished. Fine, but I did violate the prohibition. So I need atonement; I bring an offering. What? One second, you’re already answering. First I want to sharpen the question. Unintentional action—sorry, mit’asek—you did not violate a prohibition at all. It’s not an argument about punishment. If you remember, I gave exactly this introduction at the beginning of the lectures on unintentional action. Because with unintentional action, people often think: okay, I didn’t mean it—that always means “I didn’t mean it,” as though it were an argument about punishment, that I’m not guilty. No. Unintentional action means that there is no prohibition here. It’s not an argument about punishment. If you did it unintentionally, it’s not because you’re not guilty and therefore they exempt you from punishment, but because there was no prohibition at all. One who acts in that way did not violate anything. Notice: in unintentional action nothing is lacking in his intention. Not really. Think of someone dragging a bench and making a furrow. Fine? What does it mean, in the simple sense, that he didn’t intend? Let’s leave Rabbi Chaim aside for the moment. In the simple sense it means he didn’t do it in order to make the furrow. But he knew a furrow would be made. There wasn’t something here that he didn’t intend; rather, he just didn’t do it for the sake of the furrow. He did it in order to drag the bench. There is nothing here—this cannot be an argument for exemption from punishment. If such a thing were really prohibited, then you’d have no claim to exemption from punishment. You knew there would be a furrow here, right? Why did you do it? Because that wasn’t what I wanted. So what if that wasn’t what you wanted? It’s like if I murder someone and say: I only intended to practice at the shooting range. Then I saw he was here, and he just happened to be my target silhouette, okay? So I shot him and killed him. Now I say: look, I didn’t intend to kill him, I only intended to practice target shooting. Okay? So you understand—if you were to say that such a thing is not murder, then that would be a substantive claim. Such a thing is not defined as murder. But surely that cannot be a claim that exempts me from punishment—look, I’m not guilty. What do you mean you’re not guilty? You’re completely guilty. The fact that you didn’t want him to die, and only wanted target practice, has nothing to do with the question of guilt. In a place where I can define the prohibition in such a way that if I intended not this but only that, then there is no prohibition, then you can raise that claim. But you cannot raise that claim as an argument for mitigation of punishment. Okay? Therefore, not only is it not said as an argument for mitigation of punishment—it cannot be said as an argument for mitigation of punishment. That is not the kind of claim that addresses punishment. Okay? Shogeg is an argument for mitigation of punishment. Now in this case of mit’asek—that’s what I want to sharpen now—in this case of mit’asek you actually could say that it is an argument for mitigation of punishment. And therefore they connect it to melekhet machshevet and the rest. It’s an argument for mitigation of punishment. Why? First of all, I thought I was cutting something detached or lifting something detached—in any event, something not prohibited—and it turned out that I detached something attached. What do you want from me? I’m shogeg; I didn’t see; I’m compelled; I’m mistaken; whatever from that family. That is an argument for mitigation of punishment. But in the Talmud here, we see otherwise. Here we see that mit’asek did not commit a prohibition. It’s not that I exempt him—shogeg committed a prohibition, there is just an argument for mitigation of punishment. Unintentional action did not commit a prohibition at all. In terms of these two categories, mit’asek resembles shogeg. It’s an argument for mitigation of punishment. Right? Because I didn’t intend it. What do we see here? We see—right, clearly there is also an element of shogeg here. The claim is that there is something additional here, not instead of it but in addition. Okay? What is that additional thing? That there is no prohibition here. If I intend to lift something detached or cut something detached and I cut something attached, then besides the fact that I have an argument for mitigation of punishment like shogeg, there is also a substantive exemption: I did not commit a prohibition. So then I don’t even need the argument for mitigation of punishment. But in principle, even if there were—still, of course it would not be intentional. It would simply be shogeg. So clearly every case of mit’asek also has an element of shogeg, but it is not only an element of shogeg. What more is there? There is something else here, like unintentional action. It is a combination of shogeg and unintentional action. Mit’asek—that’s the important point. What does that mean? On the one hand there is the subjective element: I didn’t intend this, I intended that, I’m not guilty, I didn’t know I was doing a prohibition. Okay? So for example what is written in—yes? He intended to cut this kind of fig and cut grapes—that is something else. There he did intend a prohibition; it is forbidden to cut grapes and forbidden to cut figs. There is no difference—the cases of the Mishnah, right? So I’m leaving that aside for now; I’m speaking now about the cases in the Talmud. So on the one hand there is shogeg here. And in that sense it is not like unintentional action. Someone who drags a bench and a furrow is made—there is no element of shogeg there at all. He knew exactly what was going to happen. There is no element of shogeg there at all. Meaning, according to Rabbi Yehuda, who obligates for unintentional action, he obligates fully—he doesn’t obligate a sin-offering; he obligates stoning. Leave aside for the moment that maybe from the perspective of melekhet machshevet this still drops to a rabbinic prohibition—that’s a dispute among the medieval authorities that we saw. On the conceptual level, certainly there is no exemption of shogeg there. In unintentional action there is no exemption of shogeg. On the other hand, in shogeg there is no exemption of unintentional action. Meaning, you committed a prohibition, only in a state of mistake, so you have arguments for mitigation of punishment. It’s not like unintentional action. Mit’asek is a combination of both. In mit’asek there is both an argument for mitigation of punishment—I didn’t know I was doing a prohibition, I didn’t intend this—that makes you shogeg. But beyond that there is apparently also a definition of the prohibition itself, because the fact is that I am not liable for a sin-offering. It’s not like shogeg. Why am I not liable for a sin-offering? A person who is shogeg is liable for a sin-offering. Because here there isn’t even a prohibition—not only am I shogeg, okay? Now the question is why that is. What is there in mit’asek that differs from ordinary shogeg? Or in other words, where does the added dimension of unintentional action come in here? Right, I said that mit’asek is basically the sum of shogeg and unintentional action together. A product, not a sum. Yes, of shogeg and unintentional action together. Okay? A logical product, a Cartesian one, call it whatever you like. Not an ordinary product, and not a sum either. So the question is where that enters, what the difference is. When will shogeg count as shogeg, in which case the prohibition exists and you only get mitigation of punishment—you bring a sin-offering—and when will shogeg be mit’asek? The dimension of unintentional action enters here. So Rashi says as follows. Rashi on Shabbat 72 first says this: “He intended to lift something detached”—for example, a knife fell into a vegetable patch and he intended to lift it. Strange picture. How would you have explained it? He intended to lift something detached and uprooted something attached. Huh? Was there produce there?
[Speaker E] What?
[Rabbi Michael Abraham] What do you mean, produce?
[Speaker E] Cabbage, say, but detached cabbage.
[Rabbi Michael Abraham] He thought the cabbage was detached, and he was mistaken—the cabbage was actually attached. Rashi doesn’t explain it that way. Rashi says a knife fell into the vegetable patch and he intended to lift the knife, not the thing that he cut. But lifting the knife ended up cutting some vegetable. Right? That’s not how we would have explained it. Tosafot comments on Rashi and disagrees with Rashi. But that’s how Rashi explains it. Why does he explain it that way?
[Speaker B] He’s narrowing it down; he doesn’t want to say it’s the same object and it’s attached.
[Rabbi Michael Abraham] If it were the same object, what would the law be?
[Speaker B] According to Rava it would be—there’s some…
[Rabbi Michael Abraham] Rashi understands that if it were the same object, that would be shogeg, not mit’asek. Right? Rashi is basically saying that if you intended to lift a cabbage and thought it was detached, and it turned out you were mistaken and it was attached, that is not an exemption of mit’asek—that is shogeg. It would be shogeg; you would be liable for a sin-offering. Again, of course there is no punishment, because you didn’t know you were doing a prohibition. But that is only shogeg; there isn’t the other dimension here. For there also to be the dimension of unintentional action—for it to become mit’asek—you need it to be a different object. You want to lift the knife, which is certainly detached, but somehow it turns out that you cut some produce. Okay?
[Speaker B] Certainly according to Abaye, maybe Rashi only thinks this according to Rava, because maybe according to Rava it’s really more…
[Rabbi Michael Abraham] Abaye is stricter than Rava.
[Speaker B] Right, so maybe—Abaye, what do you mean stricter?
[Rabbi Michael Abraham] He exempts less than Rava. No, Rava exempts more than Abaye. If he intended to cut something detached and cut something attached—according to Abaye that’s prohibited, and Rava says it is exempt. If he intended to lift something detached and cut something attached, that certainly is exempt according to both. So Rava is lenient and Abaye is stringent.
[Speaker B] Another point: he brings it according to Abaye, meaning only according to the stringent opinion; he doesn’t say, meaning—
[Rabbi Michael Abraham] According to Abaye, when he intended to lift something detached and cut something attached, that’s only where they are two different things. But if it’s the very same thing itself, then Abaye holds him liable. There’s no reason to create another dispute between Abaye and Rava that the source didn’t state.
[Speaker B] No, it could be that he inferred it from—no, no, listen, listen. Intended to cut—that’s the same object.
[Speaker F] And cut, or intended to lift.
[Rabbi Michael Abraham] Intended to lift—that’s two different objects: to lift this and he cut that. Intended to cut and cut—that’s the same object itself. What happens if he intended to lift and cut that very same object itself? According to Rashi, that would be shogeg, not mit’asek. Okay? So that’s the first point. The second point: Rashi says, “and cut something attached—he is exempt, because it is written ‘with which he sinned,’ and we expound in Keritot: to exclude one who was mit’asek with another thing and did this thing.” Again you see—it has to be another thing. Because if it’s that very same thing, then according to Rashi it is not called mit’asek, okay? “And what is a case of shogeg?” So Rashi says, fine—what then is the difference between this and shogeg? You see that in the very same object, the mit’asek itself is not mit’asek, it is shogeg. So why, when it is another thing, is mit’asek not simply shogeg? What is the difference? He made a mistake here and he made a mistake there—what difference does it make? So Rashi says: for example, he intended that, but he erred, because he thought today was not the Sabbath or he thought this labor was permitted. That is shogeg. And this is mit’asek—he was occupied with lifting, not with cutting. So what is the difference between shogeg and mit’asek? Your question was—
[Speaker B] Whether his mistake is essential to what he’s doing, or whether his mistake is just about something in the background, in the conditions. Right.
[Rabbi Michael Abraham] Meaning, if the person knows exactly what he’s doing, and what he intends is exactly what he does, only he lacks some background information—what kind of information? Two possibilities. Either he lacks factual information, for example the information that today is the Sabbath, or he lacks halakhic information, for example that it is forbidden to cut on the Sabbath. Right? Those are the two types of shogeg in the Mishnah in the chapter Klal Gadol: one who doesn’t know that today is the Sabbath, and one who doesn’t know that it is forbidden to trap or cut on the Sabbath. By the way, someone said earlier that the difference is whether you don’t know the law or don’t know the facts. No, that’s not the difference. In shogeg there are two kinds of shogeg—sorry—one who doesn’t know the facts and one who doesn’t know the law, and both are shogeg. So that is not the distinction between shogeg and mit’asek. So what is? Rashi says that mit’asek exists where you have no mistake at all, neither in law nor in fact, but you simply do not intend to perform the action that you actually performed. You are simply doing a different act from the one you think you are doing. Okay? Not “do not intend” in the sense of unintentional action, right? There “do not intend” means “not interested.” Here, no—you simply do not know. You do not know that you are actually doing action A; you think you are doing action B. In shogeg you are doing exactly the action you think you are doing. You know it is attached, you know you are cutting, and therefore you are doing exactly what you intended to do: what you thought is what you did. You just didn’t know that today is the Sabbath, or you didn’t know that it is forbidden to cut on the Sabbath. You lacked information, either halakhic or factual, about the circumstances of the act. But as for the act itself, it was clear to you what you were doing. What you thought is what you did.
[Speaker E] What is “doesn’t intend”?
[Rabbi Michael Abraham] “Doesn’t intend” is someone who drags a bench and makes a furrow. Here, what
[Speaker E] happened? He doesn’t intend what happened, but he knows.
[Rabbi Michael Abraham] He knows a furrow may be made?
[Speaker B] It’s not that he wanted to do one action and something else happened—no, no, no.
[Rabbi Michael Abraham] No—the opposite. Unintentional action is actually more severe than mit’asek, not lighter than mit’asek. In the simple understanding, unintentional action is more severe than mit’asek; we’ll discuss that further, but that is the straightforward approach. Why? Because one who acts unintentionally knows exactly what he is doing. He has no mistake at all. He knows he is dragging a bench, and he knows that a furrow may be made here. Again, even if it isn’t an inevitable result, it doesn’t matter whether it’s inevitable or not. Even if it isn’t inevitable, he knows a furrow may be made here, only it isn’t certain. But it may happen. And he knows all of that in advance. And what he does is exactly what he thought he was doing. There is no gap at all between what he thought and what he actually did. Therefore it is more serious than mit’asek; it is more severe than mit’asek. So Rabbi Yehuda, for example, who disagrees with Rabbi Shimon, holds one liable for unintentional action. But regarding mit’asek, there is no dispute between Rabbi Yehuda and Rabbi Shimon. So the claim is that in shogeg you lack circumstantial information, but the action itself that you are doing, or the object on which you are doing the action—you know exactly what it is. The action, the object.
[Speaker G] Where is the Talmud on this? We saw in that case that he doesn’t know—he has two dates, he doesn’t know which are the figs and which are the grapes?
[Rabbi Michael Abraham] No, no, I said I’m not getting into the Mishnah yet. You’re talking about the Mishnah and not the Gemara. The figs and the grapes—I’m talking right now about the Gemara, about Abaye and Rava. We’ll get to the Mishnah later on. Okay? The Mishnah really is problematic. So Rashi’s claim, in short, is that we have the following: let’s make a hierarchy, okay? Misasek is the easiest case, unintentional action is a bit more severe, and inadvertent transgression is more severe still. That’s the hierarchy. Why? What is missing in each one of them? Let’s start from the top, okay? The inadvertent transgressor basically knows exactly what he’s doing. Right? He intended to trap some animal, and that is exactly what he did; or he intended to cut a certain plant that was attached, he knew it was attached, and that is indeed what he did. He lacks no information with respect to the action he is performing. He is doing exactly the action he thought he was doing. So what information is missing—why is he inadvertent? Either factual information, that today is the Sabbath, or halakhic information, that he doesn’t know it’s forbidden to cut on the Sabbath. Notice, also in—okay. That’s with regard to inadvertent transgression. Fine? What happens in the case of unintentional action? In unintentional action, he lacks no information. Neither factual nor halakhic. He lacks no information at all. Therefore, there is no exemption here of inadvertence. But there is a rule according to Rabbi Shimon—according to Rabbi Yehuda, no, but according to Rabbi Shimon there is a rule that says that if you perform an action, let’s say at least in the laws of purposeful labor, though this also exists elsewhere in the Torah—if you perform an action while your objective is a different objective, then there is no prohibition here at all. You don’t need exemptions for inadvertence, because there is no prohibition.
[Speaker H] What happened? I didn’t mean to? I didn’t mean A and I did B.
[Rabbi Michael Abraham] That’s misasek. What we call “I intended” in everyday language is more similar to misasek. When I say “I didn’t mean to,” I’m really referring to misasek in the sense of ordinary Hebrew. In the Gemara, “unintentional” is something else. “Unintentional” means: what was the goal of my action? I knew exactly what was happening here and what I was doing. The question is what the goal was. Was the goal to drag the bench, or was the goal to make the groove? That’s all. And therefore here this is a halakhic novelty. It’s not like inadvertence, where there’s a novelty that you’re not culpable—well, that’s how it is. Here it’s a halakhic novelty: such a thing isn’t considered done at all. There is no prohibition in such a situation according to Rabbi Shimon. According to Rabbi Yehuda there is, okay? But why do I call this more severe than misasek? Because, for example, according to Rabbi Yehuda, who does not accept this halakhic novelty that an unintentional act is not prohibited, Rabbi Yehuda will indeed say that he is liable—not only liable, but liable to stoning. It’s not a sin-offering. It’s worse than inadvertence. Notice, the hierarchies here are very complex. Meaning, unintentional action is ostensibly lighter than inadvertence, but that’s all according to Rabbi Shimon. According to Rabbi Yehuda it is more severe than inadvertence. Why? Because it has no connection to inadvertence. In unintentional action there is no inadvertence. The whole question is only whether there is such a prohibition or there isn’t, but it has nothing to do with inadvertence. There is no inadvertence here. Therefore, if according to Rabbi Shimon there is no such prohibition, then no problem, everything is permitted. According to Rabbi Yehuda, where there is such a prohibition, then he is liable to stoning, because there is no dimension of inadvertence here. It is simply unrelated. It’s on a completely different axis. Now what happens with misasek? In misasek there is the dimension of inadvertence, right? There is the dimension of inadvertence, because I don’t know that I’m committing a prohibition. Okay? But there is something more here: if I am misasek—I intended to lift and I detached—never mind, Abaye according to his view and Rava according to his view—then there is no prohibition here at all. It was never introduced as a case where there is a prohibition. In that sense it is like unintentional action, only it is lighter than unintentional action, because not only is this unintentional, but you are also inadvertent. In ordinary unintentional action there is no dimension of inadvertence. If it were prohibited, you would be liable to stoning. One second—in misasek there is a dimension of inadvertence. That means that even if I were to decide that there is no exemption of misasek, or according to Abaye, let’s say, in a case where there is no exemption of misasek, still obviously there would be no stoning here, because he acted inadvertently. Yes, he doesn’t know that it is detached; he doesn’t know he is committing a prohibition here. So that is inadvertence. It cannot be worse than inadvertence. It can only perhaps be lighter than inadvertence, or the same as inadvertence, not above it. Meaning, it cannot be more severe than inadvertence, since he doesn’t know that he committed a prohibition. So the exemption of inadvertence will apply here. Therefore the hierarchy is as I said: inadvertence is the most severe, unintentional action is second according to Rabbi Shimon, and misasek is the lightest according to Rabbi Shimon. According to Rabbi Yehuda, the hierarchy is: unintentional action is fully liable—it may be only a rabbinic prohibition because of labor not needed for its own sake, but let’s leave that aside—let’s say liable; inadvertence is liable to a sin-offering but not stoning; and misasek is permitted. Why exempt? Because of the dimension that he doesn’t know that…
[Speaker J] It’s like he doesn’t know that he committed a prohibition, but really there is no prohibition for him.
[Rabbi Michael Abraham] I said: you don’t need the exemption of inadvertence if there is no prohibition, because then you don’t need it—but it exists. The practical implication is for someone who says that in a certain case it does not fall under misasek. For example, if he intended to cut and cut—Abaye—where if he intended to cut and cut there is no exemption of misasek, obviously that will still not be worse than inadvertence. That’s the practical implication. There is a dimension of inadvertence, only it is screened off, meaning it doesn’t come into expression because there is nothing from which to exempt you—meaning, you didn’t violate any prohibition. But the point is important: there is something combined here. Maybe I’ll give you an example that will sharpen the point a bit—what the relation is… I once wrote an article about deceptive misrepresentation. Do you know what that is? Deceptive misrepresentation is, for example, someone comes, and the Gemara in Hullin 94b, I think—the Gemara there discusses the topic of deceptive misrepresentation. It’s a Torah prohibition, deceptive misrepresentation. According to almost all opinions; there is one opinion among the medieval authorities, I think the Ritva brings it, that it is a rabbinic prohibition. But straightforwardly it’s a Torah prohibition. It is learned from “You shall not steal.” No, you’re talking about “You shall not steal.” No, that’s something else. “You shall not steal” includes kidnapping and theft of money. I’m talking about deceptive misrepresentation. Deceptive misrepresentation is learned from the verse about monetary theft, from “You shall not steal.” What is deceptive misrepresentation? For example, I invite you to my place—
[Speaker E] for a meal,
[Rabbi Michael Abraham] and I know you’ll be abroad this Sabbath. I won’t have to spend the money to feed you, but I’m acting as if you’re important to me and I’m willing to invest in a meal for you—that’s called deceptive misrepresentation. That’s one branch. A second branch: two types of cases that appear in the Gemara. The second branch is in the laws of commerce. In the laws of commerce, you say to a person: take this car, it’s worth ten thousand shekels, take it for five thousand. Now it turns out after he buys the car, it turns out it has no engine. There was an engine—like the old comedy troupe used to say—well, no, it has no engine. Fine? Now this is not overcharging, because a car without an engine really does sell for five thousand shekels. The price is the price of the merchandise you received, but you didn’t know what you bought. No, it’s not a mistaken sale. Because… you paid five thousand, that is the price of a car without an engine. You got five thousand’s worth—what do you want from me? You didn’t want it? No problem, sell it and you’ll get five thousand—what do you want from me? You got something worth five thousand. Right, he tricked him. That’s deceptive misrepresentation; it’s not overcharging. No, who said? You got five thousand’s worth for five thousand; there’s no problem with that. If you don’t want it, also no problem—you can sell a car without an engine and get your five thousand back; in principle you didn’t lose anything. Only the hassle involved. Fine, that’s not… that’s called deceptive misrepresentation. By the way, in Maimonides, deceptive misrepresentation of the second type appears in the laws of sales, and deceptive misrepresentation of the first type appears in the laws of character traits. “Traits” means virtues and vices; “traits” for Maimonides does not mean worldviews. Foundations of the Torah is worldviews.
[Speaker I] In overcharging he has to pay
[Rabbi Michael Abraham] double? No, no, there’s nothing for him to pay for. What would he pay for? He didn’t do anything; he didn’t steal anything. So this is called deceptive misrepresentation. Once Rabbi Ovadia invited me to this sort of weekend seminar they do for lawyers, with workshops and such. And really, when I was preparing for that weekend, I was thinking—the question was what exactly is the relationship between this and theft. Rabbi Chaim Palaggi, I think, writes—Rabbi Chaim Palaggi claims that deceptive misrepresentation is—yes, Rabbi Chaim Palaggi claims that someone who looks at another person’s letter, in violation of the ban of Rabbeinu Gershom, someone who looks at a letter he is forbidden to look at, someone else’s letter, violates the prohibition of deceptive misrepresentation. So he told me, “He only violates that?” Yes, it’s an astonishing midrash—what does that have to do with deceptive misrepresentation? So he argues that Rabbeinu Gershom made the ban to reinforce the prohibition. That happens; sometimes they make a ban in order to reinforce an existing prohibition. He didn’t create the prohibition—that’s Rabbi Chaim Palaggi’s whole move, that Rabbeinu Gershom did not create those prohibitions there, but only reinforced them through a ban. Fine? No, not this—not all the bans—but for example divorcing a woman against her will, he says, really is a Torah prohibition; divorcing a woman against her will is a Torah prohibition. So he asked me, he said: what kind of astonishing midrash is this? What does this have to do with deceptive misrepresentation? What does it have to do with deceptive misrepresentation, looking at someone else’s letter? Deceptive misrepresentation is lying to someone, stealing his mind, deceiving him. I didn’t lie to him about anything—I just peeked at his letter. And then it clicked for me. I said to him: what is the difference—or not the difference, sorry, what is the similarity between the two types of deceptive misrepresentation that appear in the Gemara in Hullin? Inviting someone to a meal when he’s abroad and I know he’s abroad, and selling a car without an engine. Okay? What is the relation between these two? What will you say—that in both of them I’m lying? Deceptive misrepresentation is not lying. Deceptive misrepresentation is a Torah prohibition; lying is not prohibited. In Jewish law there is no general prohibition to lie, you know. Only in a religious court.
[Speaker B] You manipulate in order to improve your standing in the other person’s eyes.
[Rabbi Michael Abraham] In commerce it’s not manipulation to improve my standing in the other person’s eyes.
[Speaker B] Not your standing—the standing of the object. You want him to have an incorrect assessment of the deal, of the thing.
[Rabbi Michael Abraham] So again, what’s the connection? Why is this the same prohibition?
[Speaker B] No, it’s the same action, not the same goal.
[Rabbi Michael Abraham] Why the same action? The falsehood in it? So I’m saying, don’t go back to falsehood.
[Speaker B] The goal is to create value.
[Rabbi Michael Abraham] Ah, so Rashi is brought there saying that in the invitation-to-a-meal type, you receive gratitude for free. He is basically grateful to you for valuing him and being willing to invest in him, when in fact you were not willing to invest in him. You got the gratitude for free. Fine, and in the transaction what do I get—gratitude for the discount I gave him, and that too for free? I didn’t give him a discount, and afterward I won’t even get gratitude. He’ll discover there’s no engine, he’ll try to drive, and unless he’s the Baba Sali, it won’t go. He told him, “It should cost two thousand, but I’m selling it to you for one thousand,” and really it is worth one thousand? He just lied to him. So maybe that too is deceptive misrepresentation, I don’t know. Fine. In the end, I made the following claim. What is the difference between deceptive misrepresentation and lying? Just think about it in general, without the Gemara’s examples. What is the difference? Very often, “you stole my mind” is basically a synonym for “you lied to me,” right? But it isn’t. A lie—for example, if someone asks me, “Tell me, how old are you?” and I tell him “Twelve and a half.” So I lied to him, right? But I didn’t steal his mind. Why didn’t I steal his mind? Not because he can see it, that’s not the point. I didn’t steal his mind because I’m just an idiot. Rather, the point is that he is not entitled to that information. He’s not entitled to it. Am I obligated to tell him my age? I don’t want to tell you. Okay? So if I tell you something incorrect, then I lied, but I didn’t steal anything from you, because it’s not something that belongs to you; it’s not your right to receive that information. Deceptive misrepresentation is when I take from you information that should be in your possession. I stole the information from you because it is your information. When I take from you information that is yours, I’ve stolen it from you. Okay? Here, one second, let me just finish the explanation. Now what am I saying? When I invite you for a meal, Rashi says that you give me gratitude. Of course you’re entitled to that information—am I really entitled to your gratitude or not? You give me gratitude, so the information about whether I really value you and whether your gratitude is really due to me—that is information you are entitled to receive. If I don’t give you that correct information, then I have stolen from you information you are entitled to. The same with the car. When you buy the car, true, you paid five thousand and got goods worth five thousand. But still, obviously you are entitled to the information—you made a deal with me, you are entitled to know what you are buying. Not because there is overcharging or mistaken sale or anything like that, but because the information is not just my own private information that you whimsically want to know, like how old are you, right? That’s just a whim—you want to know how old I am, I don’t want to tell you. I don’t owe you that. Okay? When you make a deal, you are entitled to know what you are buying. Again, there’s no issue here of overcharging or anything, but the information belongs to you. Therefore it is called deceptive misrepresentation. In other words, my claim is that deceptive misrepresentation, as distinct from lying, is when I steal from you information that is yours or that is due to you. Lying is giving you incorrect information, or withholding information from you that is not yours, that you are not entitled to. So that’s a bad trait, to lie, but I haven’t taken anything from you. Theft means taking something from you. When I take information from you, that is called deceptive misrepresentation. You give me gratitude for that. You appreciate me for being willing to invest in you. If you gave me that appreciation, you are entitled to know whether I deserve that appreciation or not. Okay? So in that sense, deceptive misrepresentation is interpreted literally. I steal information from you, steal data from you. And therefore Rabbi Chaim Palaggi says that if I look at your letter—a letter that is yours—I’m not entitled to look there, it’s not my information, it’s your information, so I stole information from you. That is deceptive misrepresentation, that’s what he says. Looking—not because I lied. Here, for example, this is deceptive misrepresentation in the opposite direction. One second. Here Rabbi Chaim Palaggi’s deceptive misrepresentation is something very nice, because it is deceptive misrepresentation with no dimension of falsehood at all. I didn’t lie about anything. Certainly it is called deceptive misrepresentation. Why? Because even when I do lie, the prohibition of deceptive misrepresentation is not the falsehood in the matter. The falsehood is only the manner in which I took the information that should have been yours. But here, with looking at letters, I am looking at information that is yours, taking information from you, but I am not lying—here there is no falsehood at all. Wait a second, what?
[Speaker H] You steal information from a person, you look at the letter.
[Rabbi Michael Abraham] Right, exactly. So what’s the difference? What? No, no—you can ask about information, and that’s another question. Let me just say one more sentence, one more second, one more sentence, then I’ll continue and answer you. What I wanted—I wrote this after it clicked for me there at that seminar—I wrote an article about copyright in this context. And my claim is that copyright infringement involves a Torah prohibition of deceptive misrepresentation. You steal information that belongs to someone else. And that is my source, and it is a Torah prohibition. And usually the halakhic decisors don’t cite this as a Torah prohibition, and they twist themselves terribly trying to understand why such a thing is halakhically forbidden.
[Speaker B] Wait, wait—what?
[Rabbi Michael Abraham] The fact that copyright concerns something… no, no, that’s something else—I anticipated that; now I’ll answer the question. He asked the same question. What I want to say is: when I take information that is secret—yes?—it is yours, it belongs to you, and you don’t want it to come out. What does it mean to “take” it? After all, one candle can light a hundred candles. I take the information from you, but the information is still with you. It’s not as though I removed the information from you. I didn’t steal your letter. I read it, and afterward it goes back to you and you read it too. With information, part of the issue is exclusivity. The fact that the information is only with you. If the information is not only yours, then it has no value, obviously. Information that is found… my name is in the phone book. So that information—if someone were to “take” that information from me, as it were, reveal my name even though I didn’t reveal it to him—it’s meaningless. I have no exclusivity over that information; everybody has it. To take information means to impair your exclusivity regarding the information. And I brought a source for this from an aggadic passage in Sanhedrin. The Gemara says there that when Rabbi Eliezer’s colleagues came to him on the day of his death—he had been under ban in Lod—they came to him on the day of his death and he said: “I learned much from my teachers, and I diminished them no more than a dog lapping from the sea.” He said, after all, he was like a plastered cistern… “I learned from my teachers; everything you see in me, all of it I learned from my teachers. And all this did not diminish their knowledge even by as much as a dog lapping from the sea.” The bit that he took from the sea—my teachers had knowledge a thousand times greater than mine. That is basically what he wants to say. Now the interesting question is—Rashi already hints at this there on the spot, but if you read it with insistence and sensitivity you see it—what does it mean to diminish my teachers? If I learned something from them, did I diminish them? Now I too know it, but they still know it. I didn’t take that information from them, unlike the Hasidic stories about buying the melody from the shepherd and then the shepherd forgets the melody and only the rebbe knows it. Okay? And when you learn information from someone, you don’t diminish that person, right? Nothing is lacking; the information remains with him, only now you know it too. So what is lacking? What you diminish is this: information that is exclusive is information that is yours. The value of information is when only I have it. Think about a patent I have, like copyright, right? If this patent is known to everyone, then if someone uses the patent and I created it, so what? He didn’t diminish me at all. When is this information worth something to me? When only I have the information and others do not. And the novelty is that if I invented this idea, then the idea is mine, and I’m allowed to keep it to myself and not give it to someone else unless he pays, or if I agree, or whatever. Meaning, with information you cannot separate exclusivity from the value of the information. Unlike some other object, where here if I take the object from you then you no longer have the object—with information, even if I took the information from you, you still have the information. Yes, but you no longer have the exclusivity. So this is how Rabbi Eliezer diminished his teachers somewhat—it doesn’t matter, only a little, but he diminished them. Why did he diminish them? Because with respect to the information he learned from them, it was no longer exclusive; not only they knew it, I knew it too. Okay? Now why all this? I don’t know why I wandered into all this. All I wanted to say here is the following. The whole point I made here is the distinction between deceptive misrepresentation and lying, right? Now think about theft that is not deceptive misrepresentation—ordinary theft. When we do a conceptual analysis, ordinary theft is basically a combination of robbery and lying. Right? It’s a combination of robbery and lying. What is the difference between theft and robbery? In theft I come quietly, no one knows, and I take. In robbery I take from you by force, right? That’s what the midrash says; therefore there is fourfold and fivefold payment for a thief and not for a robber, because basically the thief fears human beings more than Heaven. Okay? Why? Because the thief hides. The robber doesn’t hide; he comes and takes by force. So what does that mean? That in theft there is another dimension beyond robbery—namely that I took the other person’s property—and what is that dimension? The lying, the concealment. I concealed from him the information that I was taking the object. Meaning, there is robbery accompanied by lying.
[Speaker D] The additional lie is that you say it’s yours. What? The additional lie is that you claim it is mine.
[Rabbi Michael Abraham] That exists in both robbery and theft. I say it’s mine.
[Speaker D] No, in armed robbery I’m not sure he claims otherwise.
[Rabbi Michael Abraham] What is that? He can claim whatever he wants; the moment he sues me I’ll claim whatever I claim. That’s not the difference between theft and robbery. The point is that I think theft is some kind of combination—if we put robbery on one side of the axis and lying on the other side, theft is some mixture of them. Fine? It’s robbery carried out through concealment of information or falsehood. Okay? The same thing here: I basically want to claim that in deceptive misrepresentation there is a dimension of falsehood, but the falsehood is not the point. The point is the taking. I take from you by means of falsehood, I take information from you, and therefore deceptive misrepresentation is learned from “You shall not steal” and not from “You shall not lie, one to another.” It is theft—the theft of information. Okay? So here it’s interesting because there is a dimension of falsehood in deceptive misrepresentation, but the point is not that I did not tell the truth; the point is that I took information from you. That’s the point. Okay? What? If I don’t tell you information that is due to you, that’s like taking the information from you. Information is not a tangible thing, so what does it mean to take it? There is no taking. Not telling you is called taking the information from you, so long as the information is yours, it is due to you. Not giving you information that is yours is basically taking information from you. Okay? That’s the claim. So all of this is only an example—I’m closing the parenthesis; I don’t know, it took me much longer than I thought—but what I want to show is that many times we can look at a halakhic concept and build it as a combination of two concepts from two sides, just as I built theft out of robbery. Robbery and lying—somewhere in the middle, okay? With misasek, I basically build it as a combination of inadvertence and unintentional action. Misasek is basically a combination of inadvertence and unintentional action. When the unintentional action is also inadvertent—that is misasek. Meaning, if you drag a bench and make a groove, yes, but you don’t even know that there is ground here on which a groove could be made—not that it’s not an inevitable result. In a non-inevitable-result case, you know there is ground here but you are not sure a groove will be made. And nobody knows; it’s just because in reality it’s uncertain. You are not lacking information—we talked about that, the issue of uncertain inevitable result and so on. We talked about this last semester, those who were here. So I’m saying: misasek is exactly unintentional action where the prohibited action that I do not intend—I also do not know that it is happening. I am inadvertent with respect to it. So unintentional action onto which you also layer inadvertence—that is basically misasek.
[Speaker B] Misasek—and also unintentional action—was that always an exemption on the basis of purposeful labor? I didn’t understand. If it really is an unintentional act only when you add inadvertence to it, was it exempt on the basis of purposeful labor?
[Rabbi Michael Abraham] No, I’m saying—obviously there are distinctions in the parameters of labor. Whether unintentional action is part of purposeful labor is itself a question; we talked about that last semester. But I’m saying, on the conceptual level, yes. But there is another distinction too: you have to be very unintentional—say, with another object, for example, what Rashi says, okay? You have to be very unintentional for it to count as misasek. Meaning, it’s not enough for you to be inadvertent; you also have to be very non-intentional. According to Tosafot maybe not, never mind, that’s another discussion. But still, conceptually there is here a joining of unintentional action and inadvertence. Maybe a certain type of unintentional action plus inadvertence. Fine, but that’s what I want to say: we have to separate things here, and that is a very important point, because I once had a period where in some practical halakhic question I had to discuss a certain question of misasek, and I got badly tangled here over the relation between misasek and unintentional action. The later authorities get tangled up in this too—what is the connection between them and what does it even mean, what is the difference between them? I consulted the other teachers here too; we didn’t get out of it. And this is an important point. I’ll continue a little more to sharpen it.
[Speaker D] But at the time we defined unintentional action as a person who performs one action and two acts emerge from it.
[Rabbi Michael Abraham] No, that’s labor not needed for its own sake. What? Digging a hole and needing only the dirt. There the results are both the hole and the dirt.
[Speaker D] He does
[Rabbi Michael Abraham] two actions, not two results. Okay.
[Speaker D] The question is which of them he intends. Right. Now in misasek you don’t have two actions. Why? Because maybe you’re mistaken about the action, but you’re not doing two actions.
[Rabbi Michael Abraham] Ah, obviously—but what interests me is only the prohibited action, because in the end I did perform the prohibited action. Now my discussion is why I am not liable for it. So in ordinary unintentional action I really performed another action, in practice I performed another action and this one accompanied it. Fine? In misasek there is no other permitted action with which I was occupied. Right, but still, with respect to my exemption from the prohibited action, it looks like unintentional action. Okay?
[Speaker B] So the essential difference is that an unintentional act was always exempt on the basis of lack of intent—as though we analyze the action. We looked at what the person did and say, in this thing, when someone drags a bench, he intends—we look at what the intention is. When we talk about misasek, we take a step earlier and say that he wants to plan the action.
[Rabbi Michael Abraham] No, unintentional action also is not planning. No. Unintentional action also is not planning. When you plan the action, what do you want? Do you want a groove to be made here?
[Speaker B] The discussion is, when a person drags a bench, what is the intention in that thing?
[Rabbi Michael Abraham] What does that mean, what is the intention? What does he want to achieve? Well obviously, what does he want
[Speaker B] to achieve? He wants to move the bench, not make the groove. In misasek the question is not about what he is doing, what he wants to achieve, but the question is always about what he really planned to do, what he wanted to achieve. We don’t analyze the action; we analyze his intentions.
[Rabbi Michael Abraham] No, we analyze both. You’re taking me back to inadvertence.
[Speaker B] His intentions—that’s what you said is similar to inadvertence. Right.
[Rabbi Michael Abraham] And here there is also misasek and also unintentional action and also inadvertence.
[Speaker B] I’m saying, but the unintentional action here is not the same—it’s not really the way we understood unintentional action. We understood unintentional action as a very concrete discussion about acts, and how we view and perceive the acts.
[Rabbi Michael Abraham] But still, his intentions.
[Speaker B] We didn’t bring in intentions.
[Rabbi Michael Abraham] No, of course we did. Of course we did. What do you mean? All of unintentional action is about intentions. What do you want to achieve by dragging this bench?
[Speaker B] That was the discussion.
[Rabbi Michael Abraham] No, that’s the result. Again, you need to distinguish between the definition of the situation and the halakhic analysis of that situation. In defining the situation, the situation of unintentional action is when you truly do not intend—not intend in the sense that this is not what you are doing the action for, namely the groove, but rather for dragging the bench. Your intention definitely has a place here. Now the question is how to analyze the exemption. Why not? Of course it does, that’s the basis of the whole story.
[Speaker B] No, it was always the result.
[Rabbi Michael Abraham] The halakhic analysis comes after I reach the conclusion that the situation is one of unintentional action. And how did I reach that conclusion?
[Speaker B] I said, I’m explaining now.
[Rabbi Michael Abraham] First of all I have to decide that the situation under discussion is a situation of unintentional action. Now I have to discuss what the law is for someone who is in such a situation. When I discuss whether the situation is a situation of unintentional action, the discussion is only about the person’s intentions. If the person intended to drag the bench in order to make the groove, then he is intentional; if he drags the bench for the sake of the bench and not for the groove, then it is unintentional action. Now I discuss: okay, I reached the conclusion that he is unintentional. Why is he exempt? Now, is it because these are two different actions and he did this one and not that one? Why in an inevitable-result case
[Speaker B] is he not exempt? Because in an inevitable-result case I see the
[Rabbi Michael Abraham] two actions.
[Speaker B] Why was he exempt—because it was two actions?
[Rabbi Michael Abraham] Correct, but that’s the analysis. Wait—with misasek I haven’t yet done that analysis at all, so wait. Right now I’m only characterizing the situation.
[Speaker B] You compared misasek to something close to unintentional action, and said—it’s not really on the same plane. Because unintentional action was always a very concrete question, actions—we…
[Rabbi Michael Abraham] But again, I still haven’t said anything about misasek. True, also with misasek I will explain the exemption the same way, but I still haven’t explained why there is an exemption in misasek. I tried to define the situation called misasek. What is the situation? Afterward we’ll see why he is exempt. But first of all, what is the situation? When I define the situation, there is here really just as in unintentional action. When I define a situation of unintentional action, I define it according to the person’s intentions, period. That’s obvious; that is the definition of unintentional action. Now one can discuss why you are exempt in such a situation—because it is two acts, because it is one act, yes inevitable result, no inevitable result—those are halakhic questions. No need to talk about that here; this is the definition of unintentional action.
[Speaker B] We never said at any stage that if someone actually does plan the thing…
[Rabbi Michael Abraham] Absolutely—we did. That was the first sentence I said in the class on unintentional action. If you drag a bench and your goal is to make a groove, we are not in the topic; you are liable to a sin-offering or to stoning. That was the first sentence I said in the class on unintentional action. When you drag a bench and your goal is that it create a groove, you are liable to a sin-offering or stoning, depending whether it was deliberate or inadvertent. That’s obvious; that’s the beginning of the discussion. Only if you do not intend the groove but rather the bench, then it is unintentional action. And now the whole halakhic or conceptual discussion begins as to why you are exempt for unintentional action. Is it one action? Two actions? Did you do it or not? But the factual definition—what is called a situation of unintentional action—is solely a definition of the person’s intentions, only that. Meanwhile with misasek, I did only this initial stage of defining the situation—what is a situation of misasek. After that we will have to discuss why the misasek is exempt. Okay? But right now, in terms of defining the situation, it is the same thing. So that is what Rashi tells us: when you act inadvertently, you know exactly what you are doing; when you are misasek, you think you are doing one thing, but in truth you are doing something else—and in addition, of course, there is also the dimension of inadvertence. “He did not intend the prohibited piece.” The third Rashi: “through inadvertence regarding the Sabbath or through inadvertence regarding the labors”—yes, factual inadvertence and halakhic inadvertence. “Rather, he was occupied with cutting a permitted piece, thinking…” —he knows it is the Sabbath and he knows that cutting something attached is forbidden, that cutting something attached is forbidden. Meaning, he knows the laws, he knows the facts, he knows everything; he just doesn’t know what he is doing. Okay, that is called misasek. Also in Keritot Rashi says: “misasek with forbidden fats”—for example, forbidden fat and ordinary fat were before him, and it became known that this was forbidden fat and this was ordinary fat, and he intended to eat the ordinary fat and looked elsewhere and his hand went to the forbidden fat and he ate it. That is not a problem of inadvertence; it is a problem that you simply did not do what you thought you were doing—you were not aware of what you were doing at all. Okay. “Or alternatively, forbidden fat and forbidden fat were before him, and he thought one was ordinary fat, and he intended to eat this piece and ate that one.” Two pieces of forbidden fat—he thinks one of them is ordinary fat and one is forbidden fat, and he intended to eat the one he thought was ordinary fat, but it turns out that one too was forbidden fat. Okay. “And this is not like inadvertence, for inadvertence means that he intended this very piece, but thought it was ordinary fat.” Fine? But the exemption is not an exemption of inadvertence; it is an exemption of misasek, because he didn’t even eat the piece he intended to eat. That’s the point. Okay? “Misasek with forbidden relations,” says Rashi, “for example, he intended to have relations with his wife”—wait—“he intended to have relations with his menstruant wife and thought she was pure; his sister and his wife were before him, and his wife slipped away and he did not know, and he had relations with his sister in her place. And this is not like inadvertence, for inadvertence is where he intended this very woman but thought she was his wife.” Fine? That is inadvertence. He thinks she is his wife and it turns out she is not his wife. But if this is not even the woman with whom he intended to have relations, then he is misasek. Do you understand how fine the line is? The line is very fine. Because what is the difference between thinking something is detached and it turns out attached, and thinking she is his wife—that this woman is his wife—and it turns out she is not his wife? What is the difference? In both cases, you could argue: I really don’t know that this is the woman with whom I am having relations; I thought this was my wife and it turned out to be my sister. No—the very fact that you had relations with the same woman with whom you wanted to have relations, even though you didn’t know that she was your sister, you thought she was your wife, okay? That is called inadvertence. Why is that called misasek?
[Speaker B] There is like a level of intentions—one can even attribute intentions to animals—he intends to do this, that is the plan, and that is what came out in practice. And there are assumptions and items of knowledge, meaning…
[Rabbi Michael Abraham] No, but attached and detached, for example—what is the difference between attached and detached and wife and sister?
[Speaker B] Because with wife and sister, in the end the intention in inadvertence is to have relations
[Rabbi Michael Abraham] with this woman, only I didn’t know she was my sister.
[Speaker B] The items of knowledge have something shaky in them, but in the intentions there is no problem at all.
[Rabbi Michael Abraham] Then why in detached and attached? My intention was to cut this thing, and it turned out to be attached and not detached.
[Speaker D] And it turned out that he intended her—when he performs…
[Rabbi Michael Abraham] What? All in all, I just didn’t know the nature of the object with which I was dealing, but I dealt with the same object with which I intended to deal. Right?
[Speaker B] So we—but we think there is a difference between detaching a permitted thing and detaching a forbidden thing. Obviously.
[Rabbi Michael Abraham] But there is also a difference between having relations with his wife and having relations with his sister—exactly the same difference.
[Speaker B] Right, but the difference here is not a difference in intentions; it is a difference of context, in that if you know who it is, suddenly you look at it differently. But here, if you know what it is, one can say there is a difference between “I intended to cut”—Rava, who distinguishes there, although Abaye does not distinguish—Rava holds this is a different kind of cutting, it really is…
[Rabbi Michael Abraham] Okay, so basically what you want to say—yes, one second, did you want to say something?
[Speaker D] I want to say simply: when you intend the action that you are doing, you are not misasek. When you, when you do not know exactly what you are doing…
[Rabbi Michael Abraham] Ah—that is what Rashi says. But now I’m asking: let’s try to break it down into coins, so to speak. Okay?
[Speaker D] If you know whom,
[Rabbi Michael Abraham] whom he wants relations with—I want relations with this woman. For some reason I imagine she is my wife, but it turns out she is my sister.
[Speaker D] There is no problem in the knowledge, but as to the action there is no question.
[Rabbi Michael Abraham] Excellent. Now I ask: I want to cut this thing. I thought it was detached and it turned out attached. What is the difference?
[Speaker B] That really is exactly your point—that what you’re asking is essentially the point of the dispute between Abaye and Rava.
[Rabbi Michael Abraham] The question is whether that is the dispute. You want to say that according to Abaye, where he intended to cut something detached and cut something attached, there is no exemption of misasek.
[Speaker B] That is his reasoning.
[Rabbi Michael Abraham] So he is basically saying it is like wife and sister. And according to Rava?
[Speaker B] That is called doing—cutting the detached thing to make salad, and cutting this
[Rabbi Michael Abraham] is harvesting—it’s two different things. Okay. So now we come, in effect, to something like this—notice.
[Speaker M] Rava said, why did he do—why did he not do what he intended?
[Rabbi Michael Abraham] Was it because
[Speaker M] he didn’t know, or because he intended and then… something else came out? I didn’t understand. The Gemara says that if he intended to lift the detached thing and cut the attached thing, why did he cut the attached thing and not the detached thing? Because he thought the attached thing was the detached thing?
[Rabbi Michael Abraham] Yes. He thought it was detached and it turned out it was attached. That seems exactly like wife and sister.
[Speaker B] No, there he’s talking about lifting—that’s something else.
[Rabbi Michael Abraham] No, no, cutting, cutting. The same thing with cutting. That’s what he said. No, if it’s lifting, that’s something else. I’m speaking about cutting. So in truth, yes, according to Abaye, it could be that this itself is exactly what Abaye says. Abaye argues that one who intended to cut something detached and cut something attached—that really will not be misasek. It is like one who intended relations with his wife and had relations with his sister. But Rava says that one who intended to cut the detached and cut the attached—that is misasek. So why with wife and sister is it not misasek? So here one probably has to say that the difference between detached and attached is a difference in the very nature of the thing—you did not know at all what this thing was with which you were dealing. Something about the essence of the thing escaped you. Well, I don’t know. You understand that this is a story for which it is very hard to give sharp criteria. When exactly is the knowledge that escapes me about the essence of the thing—so that it counts as though I really think this thing is something else—as opposed to situations in which I lack certain knowledge about the thing, but I still know that it is this thing? So, for example, if I know—I don’t know that today is the Sabbath, or I don’t know that it is forbidden to cut on the Sabbath—that certainly does not impair my knowledge of what action I am doing. It affects the question of the meaning of that action, but the action I am doing is cutting this plant. The fact that I don’t know that today is the Sabbath, or I don’t know that it is forbidden to cut on the Sabbath, is irrelevant. I know what I am doing, and I am indeed doing what I know. Okay?
[Speaker B] Actually, if there is a difference, there’s an easier way to divide the cases: if you remove the issue of knowledge, you ask whether two people looking from the outside could, say, disagree about what he did, even though they have no background information. Could they argue with each other about what he did? So when it comes to his wife and his sister, both of them would describe exactly the same thing. But when it’s detached and attached, one would say… why?
[Rabbi Michael Abraham] Because that’s in the object itself—detached or attached. So there’s no agreement between them.
[Speaker B] One would say, “I saw him cutting some vegetable,” and another would say, “I saw him harvesting things altogether.” Here you can get a situation of disagreement among people who are watching. But with his wife and his sister, that can’t happen.
[Rabbi Michael Abraham] No, disagreement among people who are watching is simply because in the actual body of the situation there really is a difference. His wife and his sister are the very same woman. The question whether she is his sister or his wife is information—it’s not… it’s information.
[Speaker B] And with detached and attached, you can amplify the difference, because you can say: what happens when someone else looks at this thing and I ask him what he did—what answer comes out?
[Rabbi Michael Abraham] Fine, so I’m saying: the dispute between two people looking at the thing is an indication of whether there is a difference in the thing itself or not. Right? So if his wife slipped away and, without his knowing, his sister came in her place, what is that? That’s misoccupation. Okay? But if I come to a woman—no one else came in her place—but rather I come to a particular woman, okay? I thought she was my wife and it turned out she was my sister. His sister didn’t come in her place. That’s not misoccupation; that’s inadvertent transgression. Right? That’s what Rashi says. Therefore Rashi also says that if he intended to cut what was detached and cut what was attached, or he intended to lift what was detached and cut what was attached, that’s with a knife and a different object. If it were like Tosafot says—that is, that I got confused about the vegetable itself, that I thought it was detached, I intended to lift it, and it turned out that I cut it—then Rashi says that such a case would not be misoccupation, because it’s in the thing itself. Tosafot says it would. You see that there are a lot of disputes here that really all come down to the question of where to draw the line between parameters that are essential to defining the object, or defining the action or the object, and parameters that are external to the situation. If they’re parameters that are external to the situation, then if I don’t know them, I’m an inadvertent transgressor. If they’re parameters that are essential to the situation and I don’t know them, then from my perspective this is a different situation, so I’m engaged in misoccupation—and also inadvertent transgression, but beyond being inadvertent, I’m also engaged in misoccupation. Okay? Now where exactly the line runs between the essential parameters and the external or secondary parameters—that can be a matter of disputes between Amoraim, disputes between medieval authorities (Rishonim), differences in situations, depending on context. Meaning, it’s very unclear. I’ll just bring you the… let’s sharpen this a bit more on the philosophical level. When we try to define a certain concept or a certain kind of object, then we basically have to distinguish between the essential characteristics of the thing and the accidental characteristics. Right? Many times I’ve heard people ask why, in the conversion process, they are very strict with the convert to see that he knows what is kosher and what is not kosher, keeping the Sabbath, and so on, while nobody is strict with him about moral matters—stealing, murder, honoring parents, I don’t know what… honoring parents for a convert is a problem, but never mind, stealing and murder. So supposedly people accuse the religious courts, the religious people, the rabbis, whatever. Okay, so why in conversion do you specifically require the ritual matters and not the moral matters?
[Speaker E] And the answer is—
[Rabbi Michael Abraham] —a logical answer: there is no need to check whether someone is obligated in the prohibition of murder or the prohibition of theft, because the prohibition of murder and the prohibition of theft do not define Jewishness. Every person is required not to murder and not to steal. If you want tests or criteria that define whether a person meets the criteria of a Jew, then you need to take characteristics that characterize Jews specifically, right? Things that characterize Jews specifically are precisely not the moral commandments. Meaning, if you see that he murders, then he’s not a human being, not that he’s not a Jew. There’s no point—it’s like I wouldn’t define a human being by the question of whether he has two legs; there are other creatures that have two legs. You can’t define a human being by whether he wears pants, even though it’s true that only human beings wear pants. Right, but that’s not an essential characteristic, okay? It’s an accidental characteristic. If you want to define a concept or a certain category of things, you have to choose those parameters that distinguish that category specifically from other categories. If they don’t—and this has nothing to do with their importance, it has to do with how unique they are. For example, the gravity of murder in Jewish law is the greatest possible severity, but murder does not distinguish a Jew—the prohibition of murder, that is. So there is no point in defining a Jew by the question of the prohibition of murder, by his attitude toward the prohibition of murder, because it isn’t unique—not because it isn’t important. Okay? And therefore, when we define things, we need to gather all the characteristics that are unique to the thing we want to define. And therefore here too, when I want to define the action or the object on which I act—and I have to make that definition for the sake of misoccupation, because misoccupation is always when I do something that I did not think I was doing. It turns out that I did something that was not the thing I thought I was doing. That is called misoccupation. Now, when does it turn out that it is not the same thing? When characteristics are missing that are essential to the definition of the action or object that I had in mind, right? Now, what counts as essential? Here people can argue. There will be medieval authorities (Rishonim) who say this is essential, and medieval authorities (Rishonim) who say this is not essential. Or Amoraim who say this is essential, and Amoraim who say this is not essential. Meaning, this question—the question of definition, the question of the essentiality of the characteristics with which I am dealing—is a philosophical, cognitive kind of question, but here it is what determines the Jewish law: when you are in a state of misoccupation and when you are an inadvertent transgressor. If essential characteristics are missing, characteristics that define the thing itself, then you are in a state of misoccupation. If secondary characteristics are missing, ones that are only circumstantial, then you are an inadvertent transgressor. But there can still be disputes, and this, I think, is a definition accepted by everyone in the world—all the medieval authorities (Rishonim) and later authorities (Acharonim), I mean, yes? All their disagreements are only over the question of what counts as essential characteristics and what counts as circumstantial characteristics. Those are the disagreements. Okay, good, let’s stop here and continue next time. More power to you, l’chaim.