The Rules of the Labors – Lesson 20

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[Rabbi Michael Abraham] Yes, that could be. It depends on whether this is about the circumstances or whether it is part of the very definition of the act itself. Now, there are medieval authorities (Rishonim) in Avodah Zarah 66b—the Rashba, Nachmanides, and Ritva—who assume, you know, that there is a rule regarding misacting unintentionally, that one who is misacting unintentionally with forbidden fats or forbidden sexual relations is liable, because he derived pleasure. Right? If someone ate forbidden fat, okay? And he was misacting unintentionally—he had no idea at all that he was eating forbidden fat, okay? But he enjoyed it. Since he enjoyed it, he is liable, even though he was misacting unintentionally. And likewise with forbidden sexual relations, yes? Someone who was misacting unintentionally in forbidden sexual relations—the very fact that he derived pleasure makes him liable. Those medieval authorities there in Avodah Zarah assume that even in a case of unintentional action, if it involves forbidden fats or forbidden sexual relations, then you are liable. Not only in misacting unintentionally—they do not even distinguish. They say: just as in misacting unintentionally there is the reasoning that “he derived pleasure,” so too in an unintentional act there is the reasoning that “he derived pleasure.” Say you performed an act unintentionally that involved pleasure from the prohibition, okay? Then you are liable. You are liable because he derived pleasure. Meaning, the pleasure itself makes you liable. Now why—why, if we have the reasoning of “he derived pleasure” in misacting unintentionally, does it seem obvious to them that the same reasoning should apply in an unintentional act as well? What is the connection between these two things? So really, if I look at the question of stringency and leniency, then they tell me: look, in misacting unintentionally, which is the more lenient case, you still make me liable when there is pleasure. So in an unintentional act, which is more stringent, all the more so you would make me liable when there is pleasure. But then the hierarchy really comes out like Rabbi Akiva Eiger, not like Tosafot, right? Namely, that an unintentional act is more stringent than misacting unintentionally. So apparently this would already become a dispute among the medieval authorities, not Rabbi Akiva Eiger versus Tosafot, but rather Tosafot versus the Spanish medieval authorities—Ashkenazim against Sephardim. But I am not sure that this is really so. Because when I looked there at the wording of the medieval authorities—and I did not bring it because that would require going too deeply into the passage—I did not find any a fortiori argument there. They do not say that if in misacting unintentionally “he derived pleasure” makes him liable, then all the more so in an unintentional act it makes him liable. Rather, it is some kind of thing that just seems obvious to them. If here “he derived pleasure” makes him liable, then there too. They do not even bother to explain it; meaning, it seems obvious to them, not something that requires justification. So no—if they had felt it required justification and had said all the more so, then it really would have looked like Rabbi Akiva Eiger. But since they say it as something self-evident, it does not look like a question of stringency and leniency. It is not because misacting unintentionally is more lenient than an unintentional act, and you make an a fortiori argument that if in misacting unintentionally he is liable, then in an unintentional act he is certainly liable. So what is it? It depends on how we understand this rule that in misacting unintentionally one is liable when he enjoyed it—because he derived pleasure. One can understand…

[Speaker C] It connects it to my will.

[Rabbi Michael Abraham] What? What do you mean, connects it to the will?

[Speaker C] After all, when you enjoy it, you cannot say you did not want it, because the fact is that you enjoyed it.

[Rabbi Michael Abraham] An unintentional act does not mean I did not want it. It means I did not do the act for that purpose. Even in the case of a furrow made in the ground, for example, the furrow made in the ground is a furrow that is convenient for me. Because if it were not convenient for me, then it would be destructive, and I would be exempt not because it was unintentional but because it was destructive. And we are talking about a furrow that plows the ground for me and that I like—meaning, it is good for me. So the fact that I want it will not be enough to make me liable. Rather what? Apparently, at least the straightforward view—there are some who want to go in the direction that pleasure turns you into someone acting intentionally, in the direction you suggested. I think that is not plausible. It seems to me more plausible to explain: why really is misacting unintentionally exempt? Because it is not considered my act. This act is not connected to me. If I was misacting unintentionally, I was not aware of it at all, so it is not considered my act, right? That is the line we have taken all along. The exemption for misacting unintentionally is the absence of a transgression, not the absence of blame. So if you enjoyed it, then the pleasure connects the act to you in place of intention. Not that the pleasure makes you into someone acting intentionally—no, you are still not acting intentionally. But what is the problem in the fact that you did not intend it? I mean misacting unintentionally—not “I did not mean to” in ordinary English, sorry, not the halakhic category of unintentional action. Why are you exempt if you did not intend it? Because it is not considered your act. If the pleasure came to you in your body, that connects the act to you—it is your act. And therefore you are liable. Not because it turns you into someone acting intentionally. Intention too is only an indication. Once there is intention, the act is your act and therefore you are liable. Not that intention is truly required. Intention is a sign, not a cause. If there is intention, then this act is considered my act and therefore I am liable for it. If there is no intention, then this act is not mine. The Talmud says: yes, but if you enjoyed it, that makes the act yours even if there is no intention. It is an alternative route for connecting the act to you. Instead of intention connecting the act to you, pleasure connects the act to you. That too is a way of connecting the act to you. So the medieval authorities say: if that is so, then what difference does it make whether it is misacting unintentionally or an unintentional act? In both cases, after all, the exemption is because the act is not connected to me. And if in misacting unintentionally, when I have pleasure, this creates a bond between me and the act even though I am misacting unintentionally, then in an unintentional act it will be the same. It has nothing at all to do with the question of which is more lenient and which is more stringent. It may be that this one is more stringent or that one is more stringent—that is completely irrelevant. This is an analogy, not an a fortiori argument. The claim is that if pleasure succeeds in connecting an act to me, then why should I care whether the act was not connected to me because I was misacting unintentionally, or whether the act was not connected to me because I was acting unintentionally. Bottom line, if there is pleasure then the act is connected to me and so I am liable. It does not matter at all whether the basic situation is misacting unintentionally or the basic situation is an unintentional act. This makes sense if I understand pleasure as an alternative connection of the act to me, and not that pleasure turns me into someone acting intentionally. Because if pleasure turned me into someone acting intentionally, then if that makes one liable in misacting unintentionally, that does not mean… that it would make one liable in an unintentional act. Because in misacting unintentionally, the point is that you do not know. And if pleasure is a substitute for not knowing, then it turns you into someone who knows, or who wants, or something like that. But in the furrow case, which is the halakhic category of unintentional action—not just “I did not intend it” in plain language—there even if you want it, that helps nothing, as with the furrow in the ground that is convenient for you.

[Speaker H] You need some minimal fulfillment of an act. What?

[Rabbi Michael Abraham] In both cases you performed the action with your own hands—that is clear. So what is the issue? Jewish law views this as an action not connected to you; the bond between you and the action does not exist. But if pleasure succeeds in creating such a bond, then what difference does it make whether it is unintentional action or misacting unintentionally? Okay? And then I understand that if this is so, then these medieval authorities do not necessarily disagree with Tosafot. Tosafot too could agree. Because according to Tosafot, who speaks in terms of leniency and stringency, it could still be that Tosafot would say that misacting unintentionally is more stringent than unintentional action, fine? And even so, the fact that in misacting unintentionally pleasure makes one liable means that in unintentional action too it makes one liable. Why? Maybe only in misacting unintentionally, which is more stringent, and not in unintentional action, which is more lenient? No, that is not relevant to leniency and stringency; it is simply a mechanistic explanation, not a question of leniency and stringency. Okay. In fact, the Pnei Yehoshua comments on them there in Avodah Zarah. What is the connection? We know that “he derived pleasure” makes you liable in misacting unintentionally; it does not make you liable in an unintentional act—these are two different exemptions. Why do they take for granted that “he derived pleasure” would make you liable in unintentional action as well? What does the Pnei Yehoshua understand? First, the Pnei Yehoshua apparently understands that in misacting unintentionally, pleasure turns you into… I do not even know what to call it exactly—into someone acting intentionally, or into someone who wants the thing. That is one point. And not that it is an alternative way of connecting the act to me, because then what is the problem? Then of course the same would apply in unintentional action. If he does not accept that you can learn from misacting unintentionally to unintentional action, then first, he does not accept that unintentional action is more lenient than misacting unintentionally. He is basically going like Rabbi Akiva Eiger, that unintentional action is more stringent, not more lenient. And therefore in unintentional action Rabbi Yehuda really does obligate, and still in misacting unintentionally he can exempt. Now notice: the people I am talking about here are Nachmanides, the Rashba, and the Ritva. These are exactly the same people I quoted from Avodah Zarah, where they say that the liability because of “he derived pleasure” in misacting unintentionally applies also in unintentional action. This somewhat strengthens the claim that they do indeed disagree with Tosafot. Meaning, they basically hold that unintentional action, like Rabbi Akiva Eiger, like the Pnei Yehoshua, is more stringent than misacting unintentionally. Okay? Against Tosafot. Now, in Kovetz Shiurim, part 2—not on the tractates; in part 2 there are various topics—he says: and indeed one must understand what the difference is between misacting unintentionally and unintentional action. For apparently in misacting unintentionally one should exempt because it is unintentional, and in unintentional action one should exempt on the grounds of misacting unintentionally. Meaning, what is the difference between these two exemptions? Every case of unintentional action is also misacting unintentionally, and every case of misacting unintentionally is also unintentional action. So why is there a difference between these two exemptions? And it seems, based on what the gaon Rabbi Akiva Eiger wrote in Yoreh De’ah 111 regarding meat and milk, about someone who locks a house on the Sabbath and does not know whether there is a deer inside—this is forbidden even though he does not intend to trap, because the permissibility of unintentional action exists only where the doubt is about what will happen in the future, not about what already is. For if there is a deer there, then this is an inevitable result, and where there is doubt whether the deer is in the house, that is a Torah-level doubt; see there. A quick reminder: we saw this Rabbi Akiva Eiger last semester. Rabbi Akiva Eiger basically says that, for example, in the case of the Taz—take the Taz’s case with the flies—that you close a box and there is a concern that perhaps there is a fly inside. Okay, the Taz says you do not have to check at all whether there is a fly inside, because otherwise you would be violating trapping on the Sabbath, right? So you might think that before closing the box you need to check whether there is a fly inside. The Taz says you do not have to check. Why not? Because even if you close the box and there is a fly inside, since you did not know, then from your point of view either there is a fly there or there is not, and therefore it is not an inevitable result that trapping will occur here. You are closing a box; is it an inevitable result that trapping will occur? Right? So apparently—wait, this is the Taz. So the Taz says that even if there is a fly inside, since you do not know there is a fly inside, therefore one cannot really say that this is an inevitable trapping case. It is not certain that trapping will occur; you do not know whether there is or is not a fly. Okay? And therefore, if you did not check whether there is a fly there—we discussed that the exemption for unintentional action is not an exemption of lack of blame, like coercion or something. Because if it were coercion, then check—you are not coerced. Check that there is no fly there, and only then close the box. You are not coerced. The Taz says this is not an exemption because of lack of blame; it is an exemption because of lack of transgression. It is not forbidden at all, so why should one have to check? True, I may be at fault, I could have checked whether there is a fly there, but why do I need to check? Whether there is a fly or there is not, if I do not know there is no transgression—it is unintentional action. Unintentional action is not a claim of exemption; unintentional action means there is no transgression. Okay? Therefore I do not need to check. Rabbi Akiva Eiger disagrees with him. Rabbi Akiva Eiger claims that this is incorrect. When you drag a bench and you do not know whether a furrow will or will not be made, that really is a case of unintentional action and not an inevitable-result case. It is an inevitable-result case only if you know with certainty that a furrow will be made here. If you do not know that with certainty, then it is not an inevitable-result case. But with the fly in the box it is different, because when you do not know with certainty, that is only an epistemic problem, a problem in your awareness of reality. From the standpoint of reality itself, if there is a fly inside the box and you close the box, then it is an inevitable-result case that trapping will occur. The fact that you do not know whether there is or is not a fly there—well, that is a Torah-level doubt, and with a Torah-level doubt we are stringent. His assumption is that a doubt that removes something from the category of inevitable result is when the doubt is in reality itself. If the ground is such that, by the nature of the ground, it is not certain a furrow will be made—not because I do not know, but because in reality itself it is not certain a furrow will be made—okay, that is called not an inevitable-result case. But if, in reality itself, once there is a fly it is clear that I will trap it, and if there is no fly then I will not, then reality itself is completely defined. I just do not know what the reality is; I do not know whether there is a fly there or not. Right? In that situation, on the side that there is a fly there, it is a Torah prohibition because it is an inevitable result; if there is no fly there then it is permitted. So here there is a Torah-level doubt, and with a Torah-level doubt one must be stringent. That is what he calls a doubtful inevitable result. It is almost an oxymoronic concept, because if it is doubtful then it is not inevitable. But no—this is a situation of doubtful inevitable result. Okay, that is Rabbi Akiva Eiger’s claim. And the same with a deer in the house; it is like the flies in the box, yes.

[Speaker C] If—whose does it belong to—if I am walking somewhere and there are ants on the way, and there are more ants, and it turns out I step on them and…

[Rabbi Michael Abraham] No, that is misacting unintentionally. We are talking about unintentional action.

[Speaker C] That is misacting unintentionally, yes.

[Rabbi Michael Abraham] So in misacting unintentionally in the simple sense, all the halakhic decisors will agree that you do not need to investigate and check whether there are ants there or not. In the case of the fly in the box, that is a dispute between the Taz and Rabbi Akiva Eiger. Okay? Because the fly in the box is unintentional action. In misacting unintentionally, the whole idea is that you do not know. So the Kovetz Shiurim says: according to this Rabbi Akiva Eiger—and by the way, people usually explain it this way, although in my opinion it is not the correct explanation—and many later authorities formulate it this way: that this is the difference between doubt about the past and doubt about the future. When you drag the bench, you have doubt whether a furrow will be made when you drag the bench—a doubt about the future—and that is not an inevitable-result case. But with the fly, the doubt is about the present state, what already was in the past or is now: is there a fly inside or not? A doubt about the past does not take you out of the category of inevitable result; it is a doubtful inevitable result. That is the distinction. I do not think this is correct; it has nothing to do with past and future. But that is how they usually formulate it, and that is what he says here. So the Kovetz Shiurim says he wants to explain the difference between misacting unintentionally and unintentional action. Fine? So he says: in misacting unintentionally, the doubt is about the past. Why? Because, say, you do not know whether the plant is detached or attached. That is like not knowing whether there is a fly in the box or not. It is doubt about the current state. You do not know the present state—whether the plant is attached or detached. It is not doubt about what will happen when I lift this plant, whether it will become detached or not. The doubt is what the status is right now. That is doubt about the past, not doubt about the future. Doubt about the past is misacting unintentionally; doubt about the future is unintentional action. That is the claim of the Kovetz Shiurim. And that is what he says: and if so, it is understandable that in every case of misacting unintentionally the error is about what already is, not about what will be—for example, where one thought it was saliva and swallowed it, or he thought it was detached and it turned out to be attached; for at the moment he performs the act, it can no longer change—it is already either attached or detached. It is not doubt about the future; it is doubt about a condition that already exists. And because of this, in every case of misacting unintentionally one cannot exempt on the grounds of unintentional action, because it is an inevitable-result case. And if not for the exemption of misacting unintentionally, then from the perspective of the law of unintentional action you would not exempt him, because this is doubt about the past. Of course, this explains things only according to Rabbi Akiva Eiger, not according to the Taz, because the Taz claims that even such a thing is not an inevitable-result case. That is just an aside, but that is his claim. And conversely, in unintentional action one cannot exempt on the grounds of misacting unintentionally, because in unintentional action he knows about the doubt, whereas in misacting unintentionally he is not in doubt at all. For example, when dragging on the Sabbath, he knows that it is possible a furrow may be made by his dragging, only he does not know for certain. But if at the time of dragging he did not consider the possibility at all, and to him it was certain that no furrow would be made, then in such a case one really should exempt him also on the grounds of misacting unintentionally. Meaning, if someone drags the bench and does not notice at all that this is loose soil and that there is a chance a furrow could be made, that really is misacting unintentionally, not unintentional action. An inevitable-result case? No, exactly—it is misacting unintentionally. Unintentional action is only where you know there is loose soil, but you are not sure whether dragging the bench will make a furrow or not. Okay? So he is basically making the distinction I mentioned earlier in one direction. That is, he says that in misacting unintentionally there is an element of error—you do not even know it is on the table. In unintentional action you do know. But he adds another distinction in the other direction—this explains why unintentional action is not exempt under the category of misacting unintentionally. But why is misacting unintentionally not exempt under the category of unintentional action? Because misacting unintentionally is always doubt about the past, and with doubt about the past there is no exemption of unintentional action—that is Rabbi Akiva Eiger’s point. Okay? Fine, I previously suggested other explanations why in misacting unintentionally there would not be an exemption of unintentional action. For example, if we say that according to Tosafot, who says misacting unintentionally is more stringent than unintentional action, then of course one cannot exempt in misacting unintentionally by virtue of the exemption of unintentional action. We spoke about reverse intention and all kinds of things of that sort. In any event, there are several comments to make about this explanatory proposal. First of all, as I said, the doubtful inevitable result that he assumes is only Rabbi Akiva Eiger’s view. The Taz disagrees with him. Fine? It is a dispute among the halakhic decisors. Another point: his words imply that misacting unintentionally is, in a basic sense, more stringent than unintentional action. Meaning, one could not have exempted misacting unintentionally on the basis of the exemption of unintentional action because it is doubt about the past. Okay? I do not think that is correct. That is, misacting unintentionally is not doubt about the past—there is no doubt here at all; I just do not know. In unintentional action I have a doubt: I know there is loose soil here, I do not know whether a furrow will be made or not. In misacting unintentionally I do not even know there is loose soil here, so this is not called a state of doubt—I am not in doubt at all. Okay? It reminds me of—do you know the Talmud in Sabbath 30? Someone comes to Rabbi and says to him, “Your mother is my wife and you are my son.” In short: you are a mamzer; I had relations with your mother and you are illegitimate. And afterward someone comes to Rabbi Chiyya and says the same thing to him: “Your wife is my wife and your son is my son”—your son is an illegitimate child from me. Right? So both of them say to that clown, “Would you like to drink a cup of wine?” He drank and burst. Meaning, they brushed him off with a cup of wine—stop talking nonsense, in short. What does that mean? Rabbi Kook writes in—what is his book called? The book on the aggadic passages in Sabbath and Berakhot—it slipped my mind. Ein Ayah. In Ein Ayah on Sabbath 30, Rabbi Kook writes there that once a certain state of affairs is established as being the way it is, then even if someone comes and raises some thought that maybe it is otherwise, that is not called a state of doubt. To be in doubt, you need a reason. It is not a state of doubt. Okay? To arouse doubt, you have to bring some supporting grounds. It is not enough just to raise a skeptical possibility. Right? I have a piece of meat. Yes, but maybe it is an optical illusion and actually it is, I do not know, forbidden fat. Fine, no—if I have no doubt then I have no doubt. Or someone says, I do not know—there was once when I was in Bnei Brak and someone there gave some Torah thought, and we wanted to make a minyan for the evening prayer. Right? Now someone comes and they ask him: tell me, are you bar mitzvah age? He says yes. We say fine, great, and he is from the street, joins the group, there are ten. And maybe he is not believed? Why do you believe him? If he says he is part of the ten, is one witness believed? Someone started analyzing there whether yes or no. The point is that if someone says something and it sounds reasonable, then everything is fine; you do not start asking questions about credibility. You start asking questions of credibility and evidence where you have good reason to doubt. If you have good reason to doubt, you start looking for evidence. If you have no good reason, yes, the Bertrand Russell story. Bertrand Russell was a well-known British philosopher and mathematician, and also an atheist among other things. And he gave the example of the celestial teapot. What does that mean? He says: if someone comes to me and says that the Holy One, blessed be He, appeared to me and told me that, I do not know, one must put on tefillin—that one must put on tefillin. Fine, I am just giving a Jewish example; he was talking about Christians. Okay? Then he says: and Tinker Bell appeared to me and said that one has to do such-and-such three times every morning. What nonsense are you talking. What do you mean? He says: imagine someone comes and tells you that around the planet Jupiter, in a circular orbit around Jupiter, there revolves a small celestial teapot. So he says: well, I have no information, right? I do not know. Am I in doubt? Either he is right or he is wrong. I am in doubt. Not at all. There is no doubt here whatsoever. What do you mean? To be in doubt, you need a reason. Meaning, he does not know, just like I do not know; he also does not know. True, maybe there is some little teapot there and maybe there is not. So does that mean I am in doubt? What, every time I have two possibilities before me and I do not know how to decide, that is called doubt? No—to be in doubt, you need a reason. That is what the Talmud means when it says: we burn and stone on the basis of established presumptions. If someone is presumed to be my father, then he is my father, period. And if one who strikes his father or mother shall surely be put to death, they will execute him on the basis of that presumption—even though maybe he is not my father at all, and then there would be no death penalty. What, we kill on the basis of a presumption? You need two witnesses in order to execute. No—if he is presumed to be my father, then he is my father. I start looking for witnesses if I have a reason to doubt. If there is some indication that he is not my father, then we begin checking what evidence there is in each direction. If I have no reason to doubt, this is not a state of doubt; I do not need to look for evidence. Is there a doubt here? What?

[Speaker C] There is a majority, that most women are with their husbands.

[Rabbi Michael Abraham] Yes, but do you execute on the basis of a majority?

[Speaker C] A majority removes the doubt.

[Rabbi Michael Abraham] What do you mean it removes the doubt? Bottom line, you are executing on the basis of a majority. Do we execute on the basis of a majority? It is true that there is a very interesting discussion—not certain, but a very interesting discussion by Rabbi Shimon Shkop at the end of volume one of Sha’arei Yosher, yes, near the end of Gate 4, where he discusses whether we follow the majority in capital cases. And it is not so simple. But here we do not need to get to that. That is the point. The point is not that a complete majority is evidence. There are situations in which I do not look for evidence; it is simply obvious to all of us that this is how it is, and so that is how it is, that is all. If these are my parents, then these are my parents. And if someone wants to raise a doubt, he needs to bring evidence that this is not certain—not evidence that they are not my parents. Of course they are not my parents—sorry, of course that is not the point—but even to define the situation as doubtful, you need to bring evidence that this is not the situation. Okay? So in this context too, if I lift the plant and I think it is detached, that is not called that I am in doubt and do not know whether it is detached or attached. And about that the Kovetz Shiurim told me that if this is doubt about the past—you do not know the current state, whether it is detached or attached—or doubt about the future. We said that is not correct. It is not doubt at all, because to be in doubt you need a reason. And if I know that it is detached, then I am not in doubt; everything is fine. Therefore the distinction is not at all between doubt about the past and doubt about the future. It is a distinction between a state where there is doubt and a state where there is no doubt, but simply no knowledge at all. Lack of knowledge and doubt are not the same thing. Yes—for example, another difficulty: there are cases of misacting unintentionally that deal with the future, not the past. For example, he stretched out his hand to take a piece of permitted fat and instead a piece of forbidden fat came up in his hand. That is what Rashi writes there in the passage we saw. That is misacting unintentionally. It is exactly like the bench; it is about the future. It is not that this is the current state and then something else happened. I put out my hand, and it ended up taking the forbidden fat and not the permitted fat. That is about the future, not the past. And that is an example of misacting unintentionally. Not because the doubt is about the past, and not about the future either. It is not doubt. There is no doubt here. With the bench there is doubt. You know there is loose soil here; you do not know whether a furrow will be made or not. So there are grounds for doubt here—what in monetary law is called a concrete basis for claim, a dragra de-mamona. Meaning, there is some reason that arouses doubt here. But here it is just plain lack of knowledge; it has nothing to do with the laws of doubt. Okay, any other comments on this matter? Avnei Nezer. Even if at that moment it does not exist, meaning it is not…

[Speaker D] It is not past knowledge that he could add before changing it. It is not a lack of knowledge, just some action that goes wrong.

[Rabbi Michael Abraham] So you—this parallels his formulation of doubt about the past and not doubt about the future, but I do not think that is the point. There I can…

[Speaker D] say that here there is some kind of thing where the problem only begins at that very moment, and there is no—there is not some kind of—it is impossible to say that this is missing knowledge. That is, there is no stage at which I can tell the person…

[Rabbi Michael Abraham] What—why? There is missing knowledge that it is detached and not attached, that it is attached and not detached.

[Speaker D] The point is that even if you tell him it is attached and not detached, when he comes to lift something he is lifting something he thinks is detached.

[Rabbi Michael Abraham] No—if he knows it is attached, then he will not lift it. What is that?

[Speaker D] How can someone approach one that is attached and think it is detached? You cannot solve this problem with more knowledge.

[Rabbi Michael Abraham] I do not understand. Of course you can. If you tell him that it is attached, he will not lift it.

[Speaker D] Yes, but he does not intend to lift something that is attached. Meaning…

[Rabbi Michael Abraham] Right, and therefore he lacks knowledge, because he thinks it is detached.

[Speaker D] No, the point is that right now he lacks knowledge about this specific act, but it is not something you can solve in advance, because you do not know what is here. There are a hundred attached ones and detached ones. Tell him these and these and these are detached, and these and these and these are attached—but he comes to lift something he thinks is detached. So what? Therefore what?

[Rabbi Michael Abraham] He thinks it is detached? I also think today is not the Sabbath, and it turns out today is the Sabbath. What… Here I can tell you: this plant—know that it is attached.

[Speaker D] It could be that he knows, and the mistake he makes is not—it is not… it could be that he knows and still lifts.

[Rabbi Michael Abraham] No, no. What do you mean, if he knows, then he lifts something attached? I do not understand that.

[Speaker D] He wants to lift—he thinks he is lifting the one… it just does not—this comes from some kind of—there is no thought before it, there is no…

[Rabbi Michael Abraham] So you are going back to the distinction I made earlier, that this is basically lack of knowledge, not doubt. So it has nothing to do with whether the problem starts now or did not start now. Simply lack of knowledge. Lack of knowledge is not doubt; it is not the same thing.

[Speaker D] One could say it is doubt, but this doubt is not something that context can solve, that knowledge can solve.

[Rabbi Michael Abraham] Why? Completely. I do not understand.

[Speaker D] It is missing at that moment.

[Rabbi Michael Abraham] And at that moment, if I have the knowledge that it is attached, then that resolves the doubt. No…

[Speaker D] Yes, but no—so you agree that the problem is only at that moment, it is not—it is not knowledge that context… it is knowledge of what I am doing right now.

[Rabbi Michael Abraham] So you are back to the definition of whether this is lack of knowledge in the thing itself or lack of knowledge in the circumstances. That is something else. No, here…

[Speaker D] Even if you do not reach that distinction—lack of knowledge in the thing itself or in the circumstances—still, in the end there is an essential difference between whether I can prepare the person and then he will do the action correctly, or whether this is an action for which he was fully prepared but it is an action in which one can still make a mistake. Meaning, he can do it incorrectly. You can tell a person these and these and these and these are detached, and these and these and these and these are attached, and he still…

[Rabbi Michael Abraham] will lift the wrong one.

[Speaker D] Right.

[Rabbi Michael Abraham] No, what do you mean he will lift the wrong one? Tell him, about the one he is lifting, tell him that it is attached and not detached. He cannot—because you will tell him that what he is lifting is attached and not detached.

[Speaker D] I do not understand that.

[Rabbi Michael Abraham] Fine, you tell him beforehand. Not beforehand—I can tell him just before he grabs it.

[Speaker D] No, whenever you tell him before he performs the act, he can still make a mistake. It becomes less and less plausible, but the mistake itself is a type of mistake that preparation does not…

[Rabbi Michael Abraham] And with the bench he cannot make a mistake? Tell him, listen, on this ground a furrow will definitely be made. And afterwards he forgets because he does not know what… I do not understand this distinction. I do not understand. You were trying to distinguish between misacting unintentionally and unintentional action. We are talking here about a distinction between misacting unintentionally and unintentional action. You tried to make a distinction between…

[Speaker D] between a lack of knowledge that can be expressed by giving him more knowledge or he—and then what?

[Rabbi Michael Abraham] For what purpose? Are you distinguishing between unintentional action and misacting unintentionally, or between what and what?

[Speaker D] Misacting unintentionally—I am distinguishing between unintentional action and misacting unintentionally, and also between inadvertent violation and what—no.

[Rabbi Michael Abraham] So I am saying: right now we are dealing with unintentional action versus misacting unintentionally. Now he wants to claim that this is doubt about the past and doubt about the future. And I am claiming that that is not the correct distinction. He calls misacting unintentionally doubt about the past, and therefore from the perspective of unintentional action you would not be exempt—you would be exempt only because of the exemption of misacting unintentionally. And I say that it is not doubt about the past; it is not doubt at all. You simply do not know. Avnei Nezer also goes in a similar direction, but he turns it into a dispute among the Tannaim. And certainly, in the case where one thought it was his saliva and swallowed it, where he did not intend to eat, this is a case of an unintentional act. But even if he intended to cut something detached and cut something attached, even according to the explanation of Tosafot and it turned out that it was attached—yes, unlike Rashi—this is considered an unintentional act, since he did not intend to uproot something from where it grows. And likewise, if he thought it was a private domain and it turned out to be a public domain, he did not intend to transfer from one domain to another, and in general did not intend to perform prohibited labor. So necessarily this is where Rabbi Yehuda and Rabbi Shimon disagree. Rabbi Shimon holds that the exemption of misacting unintentionally is because it is an unintentional act—meaning, he did not want the prohibited labor at all; it never entered his mind that this would be prohibited labor. And therefore even one who drags and does not intend to make a furrow, although he knows that it is possible that a furrow will be made, nevertheless since he does not want the prohibited labor, it is permitted. And Rabbi Yehuda holds that it is not comparable, because in dragging he knew that it was possible a furrow would be made, and so knowingly he is doing an act that may be prohibited labor; whereas in misacting unintentionally it was an error—he did not know that he was doing prohibited labor, and it is considered against his will. So he basically wants to claim: after all, there is a dispute between Rabbi Yehuda and Rabbi Shimon about unintentional action, but in misacting unintentionally they both say that it is permitted, right? What does that mean? He wants to say that Rabbi Shimon sees misacting unintentionally and unintentional action as first cousins. The exemption of misacting unintentionally and the exemption of unintentional action are really the same exemption; one need not make distinctions—it really is the same exemption. Only Rabbi Yehuda, who in unintentional action holds one liable—and we saw that in some of the medieval authorities he really holds one liable on the Torah level—and yet in misacting unintentionally it is permitted, he certainly holds that the exemption of misacting unintentionally and the exemption of unintentional action are not the same thing. Now what is the distinction? So he says: according to Rabbi Shimon—he says—in misacting unintentionally he did not want the prohibited labor at all; it never entered his mind that prohibited labor would happen here, right? So although in unintentional action he does know that prohibited labor may happen here—after all, he knows a furrow may be made here—still, it does not matter; since he does not want it, that is like misacting unintentionally. This basically means: this is not your act. Okay? So the exemption of misacting unintentionally and the exemption of unintentional action are the same exemption according to Rabbi Shimon. Therefore one need not make these distinctions. Everything we are looking for—a distinction between unintentional action and misacting unintentionally—is mistaken. According to Rabbi Shimon there is no need to find a distinction; it really is the same thing. According to Rabbi Yehuda one does need to find a distinction, because after all unintentional action is liable and misacting unintentionally is permitted. Okay? So there one needs to make a distinction, and there he makes all the distinctions we mentioned earlier, like the Kovetz Shiurim. But understand that even regarding Rabbi Shimon he explains why one need not make a distinction because in both cases it is permitted. But he himself understands that there is a distinction. I am not giving the distinction in order to resolve some difficulty. I am giving the distinction because there really is a difference; it really is not the same thing. So he says: true, but someone who does not want the furrow is considered halakhically like someone who does not know at all that a furrow will be made. So in practice you yourself said there is a distinction. So there is a distinction between misacting unintentionally and unintentional action. Only you say: fine, but according to Rabbi Shimon both of these are called acts that are not his acts. Okay? So what have you gained? Meaning, bottom line, the point is that there is a distinction here. I am not introducing the distinction; my starting point is the opposite. The Kovetz Shiurim begins from the question: wait, what is the difference between unintentional action and misacting unintentionally? It is the same thing. Meaning, from pure logic he sees no distinction. But then—wait—according to Rabbi Yehuda we see that there is a difference. So there is no choice; one has to find distinctions. I say: leave it, that is not a difficulty that needs a distinction. There is a distinction, period, even if one did not need it. The definition is a different definition. On the contrary, the one who says it is the same law—that is Rabbi Shimon—he is the one who needs explanation, because there is a difference. So that is the direction of Avnei Nezer. So Avnei Nezer says: true, there is indeed a practical distinction, but Rabbi Shimon claims that this distinction is not relevant. If you do not want it—if you are not doing this for the sake of the furrow—or if you do not know at all that a furrow is being made here, from my point of view it is the same thing. It means that the furrow is not connected to you. Fine? And that connects with the reasoning we said above, that both in unintentional action and in misacting unintentionally it works. But I keep saying: you can see that the starting point of these later authorities, and perhaps also of Tosafot who makes an a fortiori argument and so on, is basically that there is no difference. What difference is there at all between misacting unintentionally and unintentional action? And we—I told you at the beginning of the first class—that once you do the conceptual analysis and see that there is a conceptual difference between unintentional action and misacting unintentionally, then all these discussions simply do not arise. The differences exist not because I have a question and need to answer that there is a difference. The differences exist because in truth this is not the same thing. On the contrary, the one who says they have the same law—that is the one I need to explain, to say that despite the difference, the difference is not relevant according to Rabbi Shimon, for example. Okay, that is regarding the difference between misacting unintentionally and unintentional action. In several places it seems that there are situations of deliberate misacting unintentionally. Meaning, misacting unintentionally without the element of error in it. Just like unintentional action, without the element of error. We said that misacting unintentionally is some sort of combination—one moment—that misacting unintentionally is some sort of combination of unintentional action with error. It has the element of error. Now there are places where it seems there is a law of misacting unintentionally even though the element of error is not present at all. And that really raises the question: so what is the difference between misacting unintentionally and unintentional action? Yes? In what case? He was there…

[Speaker J] At the end, right at the end, there is that thing: is this specifically measuring for a commandment or measuring for an optional matter? And then he asked him, why are you measuring, after all this is optional measuring, and he said to him: I am not measuring, I am just fiddling with it.

[Rabbi Michael Abraham] Okay, so what? And the claim is that this is deliberate? It is from the outset. From the outset—meaning, he knows that what he is really doing is measuring, and despite the fact that he knows he is measuring, this is called misacting unintentionally. Okay, we should check that; I do not remember at the moment. Because in Maimonides, in fact, you can see—look at Maimonides, chapter 11, law 12, Forbidden Foods: “One who eats one of the forbidden foods in a joking manner or while misacting unintentionally, even though he did not intend the act of eating as such, since he derived pleasure he is liable just like one who intended the act of eating itself. And pleasure that comes to a person against his will through a prohibition, from any of the prohibitions—if he intended it, it is forbidden, and if he did not intend it, it is permitted.” Now it seems he is talking here about misacting unintentionally, not unintentional action, yes? Because of “he derived pleasure,” and so on.

[Speaker C] It should have said exempt. Why does it say permitted?

[Rabbi Michael Abraham] What, say that again?

[Speaker C] It should have said exempt.

[Rabbi Michael Abraham] Why is he exempt? It’s permitted. Even ab initio? Yes. Dragging a bench in a way that may make a furrow is completely permitted. On the contrary, there are medieval authorities (Rishonim) who say that even Rabbi Yehuda, who prohibits it, holds that it is only a rabbinic prohibition. So Rabbi Shimon, who permits it, permits it entirely; otherwise, what’s the dispute about? So in fact some of Maimonides’ commentators—never mind—but I’m showing you the basic principle. The basic principle is that an unintended act is permitted. Once you say it is permitted, then it is permitted throughout the Torah and also permitted on the Sabbath. Only according to Rabbi Yehuda, who obligates throughout the Torah, could it be that on the Sabbath, because of the laws of intentional labor, it is only a rabbinic prohibition. But Rabbi Shimon, who permits it, permits it completely. It doesn’t matter whether it’s the Sabbath or anywhere else in the Torah. Elsewhere too, in the laws of forbidden sexual relations, Maimonides writes: one who has intercourse with a forbidden relative among those forbidden relations while acting unawares, even though he did not intend this, is liable. What does “he did not intend this” mean? He knows that she is a forbidden relative, so this is not inadvertent sin, because otherwise it would just be inadvertent sin. Right? He didn’t intend the transgression, or he didn’t intend to have intercourse with her—I’m not sure exactly what the case is here, right? But again, it doesn’t look like there’s inadvertence here. So “acting unawares” means he really intended to do something else, and this is not what he wanted to do. All right? He had intercourse with the forbidden relative, he knew, everything is clear, but that is not what he wanted to do. That is really an unintended act. Why is this called acting unawares? It’s called acting unawares because he did not perform two actions. Again, we have to understand the case. He did not perform two actions, where he intended the permitted one and together with it did the forbidden one. He performed one action. In that sense this is like intention—it’s like acting unawares. In acting unawares you perform one action: you think you are cutting detached produce and you cut attached produce. You performed one action, not two. That is not an unintended act; that is acting unawares. All right? No—if he thought she was permitted when in fact she was forbidden, that’s inadvertent sin. Right, meaning here there is misengagement in the act itself. You didn’t know that this was an act of intercourse, perhaps, or something like that. And it may be that it’s something like that; it parallels lack of knowledge relating to the definition of the act, not to the halakhic circumstances in which it is done, right? Like what we discussed regarding the distinction in inadvertent sin. But in any event, in Maimonides here you see that there are situations in which, even though you are deliberate, you can still be called one who acts unawares. The reasoning behind this—there are these Chazon Ish-style ideas; it’s a very characteristic mode of thought of the Chazon Ish. For example, in one place the Chazon Ish writes that if, say, there was a case in Bnei Brak where someone was driving—I think it was even a woman driving; at that time there was not yet a prohibition on women driving—she was driving there, and then a cat or something passed in front of the car, she swerved and killed a person. Okay? So the Chazon Ish argues that this is not accidental homicide; it is not an act of murder at all. It is an act of rescue. Meaning, it’s not—she simply wanted to save the cat. Now what does that mean? You could say it was inadvertent. You could say it was unintended. It seems he means to say that this is acting unawares. It is acting unawares; it is not an unintended act. What does that mean? If you ask me what I am doing, the answer is: right now I am saving a cat. That is the action I am performing. Now true, a person was killed here, but that’s not the point. They ask me: where are my thoughts directed, what was I occupied with, what is this action? This action is an action of saving cats, not of killing. Therefore this is not even accidental homicide, not unintended homicide—it is acting unawares. You are not considered a murderer at all. Maybe yes—such a case could also be similar. Right. So notice, this is not the same thing as in our case, of course; I’m speaking about something deliberate, but the reasoning is the same reasoning. Meaning, if the definition of the action, the action is defined as this—now true, you also did the prohibition along with it—but when you ask what the person is engaged in, what is the answer? The answer is: he is currently swerving in order to save the cat. That is what he is doing. So you don’t start getting into definitions here—wait, he murdered, but he murdered inadvertently, murdered unintentionally—no, no, he didn’t murder at all. This is an act of saving cats, not an act of murder. Right, like—I brought these Chazon Ish ideas in an article where I discussed separating Siamese twins. Two twins are born who share an organ, like a heart or a brain. Okay? Now if they are left attached, then both of them die within nine months. There is a series of such medical situations; we know, within nine months they die. Okay? The only way to save one of them is to perform separation surgery. You do separation surgery and say, either the heart or the brain, doesn’t matter, you leave it with one of them, and the other of course will die. He has no brain or no heart, so he will die. There are some who manage to live without a brain, but usually that’s not possible. So the question is whether this is connected to the topic of two people walking in the desert, but that was the question in the… What? No, no, there it’s the law of a pursuer; that’s something else. And that’s exactly the difference. Meaning, I won’t go now into all the other cases and what this resembles, but specifically the case you brought helps me sharpen the point here. I argued that—the halakhic decisors prohibit performing separation surgery; you have to leave them both to die, all the halakhic decisors. I spoke with Mordechai Halperin about this; I argued with him about it for a whole year. The question whether this is defined as a pursuer or not is an interesting question, but the halakhic decisors prohibit it. Unless one of the organs in question is organically associated with one of the twins and the other is parasitic. Then you can say that he is a pursuer. But if the situation is symmetrical and you cannot assign the heart or the brain to one of these two twins, then the halakhic decisors say it is forbidden to perform separation surgery. Okay, right—seemingly, if both will die then both will die; even Rabbi Akiva would agree with Ben Petura. Okay? So my claim was that that is not correct; you should cast lots. You should cast lots, and whoever is chosen by lot gets the heart or the brain, and the other is sent to his eternal rest. Okay? Now what is the point here? So one could say that the law of a pursuer is very hard to apply here. If there is one person to whom it naturally belongs, then regarding the other you can say he is a pursuer—he wants to take my heart or my brain, so he is a pursuer. Okay? But if it is not assigned to either of them, then it is hard to define one of them as a pursuer. Now one could say that there is mutual pursuit here; both sides are pursuing each other. In the novellae of Rabbi Akiva Eiger on Ketubot 17, in the name of his son Rabbi Shlomo Eiger, he discusses whether there is such a thing as mutual pursuit; he wants to claim that there isn’t, but that’s not important right now. What? No, I’ll get to that in just a moment; I think there it’s not similar. So with separation surgery, what happens is that I wanted to argue that I am not—in this permission, I do not need the law of a pursuer in order to permit myself to kill the one who was not chosen by lot. Rather, the point is that I am performing an act of rescue. This surgery is an act of rescue, not an act of killing. A kind of Chazon-Ish-style reasoning. Meaning, this surgery is surgery that is an act of rescue. Why? Because if I do not perform the surgery, both die. When I do perform the surgery, one will be left to die, but he would have died anyway. What am I doing? I am basically only doing an act that saves the other one. So this act is really an act of rescue; it is not an act of killing. Not that I am killing him and need justifications because he has the status of a pursuer or something like that. No, this is not an act of killing; it is an act of rescue. One can say that. And I think it is even stronger than that, because with a person already considered dead, you are indeed performing an act of killing, only you performed an act of killing on someone who is not a living person. Here I want to claim that this is not an act of killing at all; it is an act of rescue.

[Speaker C] Because you are relating to a future action. I am relating to the result for whose sake I do the action.

[Rabbi Michael Abraham] I am doing an action of surgery, not something future. Yes, but in the present, right now. Also in the present. No, I am rescuing. In the present I am rescuing.

[Speaker C] And what about temporary life?

[Rabbi Michael Abraham] Not relevant. Again, that’s why I’m saying, it has nothing to do with temporary life versus full life. I’m claiming there is no act of killing here. It’s an act of rescue.

[Speaker C] And what about fatally defective life-forms?

[Rabbi Michael Abraham] So that’s why I say: fatally defective life-forms already takes me back to the category of a person considered already dead. I’m making a stronger argument than that. The problem is not a person considered already dead. That’s another argument. Rather, there is some argument here that says it is simply incorrect to relate to this as an act of murder that requires justification. In contrast to a child—for example, a fetus in its mother’s womb, in the Mishnah in Ohalot there, whether its head has emerged or has not emerged, doesn’t matter—there, this is an act of killing par excellence. Because what I am doing is basically killing the child. That is the action I am performing. I do it so that the woman will be saved, but the action I am performing is an action of killing the child. Now we have to discuss whether there is justification, because this is an act of killing. If there is justification, fine. If there is no justification, it is forbidden. But here my claim is: I am not performing an act of killing. I am performing an act of separation. I am giving this heart to the one who remains. True, the other will be disconnected. But this is an act of rescue; it is not an act of killing. So this does not require justifications. You do not need the justification of the law of a pursuer for this. Again, I don’t want to get too deeply into that discussion; you can read the article. What I want is only to bring from there an illustration of this type of thinking, which says: I am not engaged in that action at all. Here, notice, I am not inadvertent in anything. When I perform separation surgery I am not inadvertent; I know that the other one is going to die. I am fully deliberate, and it is also a case of inevitable consequence. I know that he will certainly die. And this is not even a past doubt or a future doubt or anything. I know everything with certainty. And nevertheless I claim that there is really no engagement in killing here. Why? It is not considered engagement in killing because the definition of the action I am performing is not an act of killing; it is another action. I said: one should cast lots. Without casting lots—

[Speaker D] No, by lot.

[Rabbi Michael Abraham] Yes, only by lot. For that you need to read the article; I discussed it there.

[Speaker C] But they are one body—how can you define that one of them is… if they live together? How is each one separate?

[Rabbi Michael Abraham] What, you’re asking why this is not one person but two?

[Speaker C] Why are they two?

[Rabbi Michael Abraham] That’s an interesting question. Rabbi Moshe Feinstein asked that question. There was a case in Philadelphia in seventy-six. Philadelphia seventy-six—that reminds us of current events. So there was a case there of Siamese twins who were born. And their parents were at least religious Jews. And they asked, and the doctors there were debating whether to perform separation surgery because it was clear that both children were going to die. So the parents asked Rabbi Moshe Feinstein, and the doctors asked the priest. The doctors there were non-Jews; they asked the priest. And the answers were identical, one for one, the same answers exactly, and the same reasoning. Both brought examples, everything. But we won’t get into that here now. I only want to say: the first question Rabbi Moshe Feinstein asked was whether this really is two human beings or one. Meaning, if it is one human being, there is no problem at all in removing an organ so that the person will remain alive. So if I view this pair as one person, then separation surgery is like removing organs so that the person remains alive. And then there is no problem whatsoever. Okay? But the conclusion was—he asked the nurses, for example, whether these two babies had different personalities. Meaning, could you see that they reacted differently? They were attached in the brain, not the heart. And they reacted differently. Meaning, one baby was more irritable and one less irritable, all kinds of things like that. And then he concluded that these are two human beings. And once these are two human beings, the discussion begins. But he says: if it were one human being—exactly your question—then what is the problem? Then you can remove organs in order to keep him alive. Fine. So that is regarding acting unawares while deliberate. I just want to complete one last point in order to finish the matter of acting unawares for today. There is… in Mekor Chaim by the author of Netivot—on Orach Chaim it is called Mekor Chaim—in section 430, in the laws of Passover, he asks: why does someone who finds leaven in his house on Passover violate the prohibition of “it shall not be seen”? He is acting unawares. No—if he nullified the leaven, he does not violate it. But if he did not nullify the leaven, he violates “it shall not be seen.” Now why? He is acting unawares. He did not do anything; he did not know there was leaven in his house; suddenly he discovered that he has leaven in the house. The Torah obligation of—

[Speaker E] the Torah…

[Rabbi Michael Abraham] Why do you violate “it shall not be seen” in such a case?

[Speaker E] The Torah obligation is…

[Rabbi Michael Abraham] No, you can violate “it shall not be seen” if you buy leaven and leave it in the house; you violate “it shall not be seen.” As Maimonides says, and then you are even flogged because it was done by an act. But from Maimonides it emerges that you can violate “it shall not be seen” by an act, and then it is not acting unawares. He asks only in a case where you are acting unawares: suddenly you found leaven, not that you bought it with your own hands; you found it; you didn’t know you had leaven. So again I’m saying: clearly, if you found it and didn’t know, one could say that you are under duress, no problem. But duress is an argument about punishment, about lack of culpability. Mekor Chaim asks why there is any transgression here at all. There is no need to get to arguments about punishment, whether I am under duress or not under duress. There is no transgression here at all—it is acting unawares. All right? In truth I’m not even sure—Rabbi Akiva Eiger devotes an entire responsum to this question, responsum 8. But I am somewhat uncertain about this question, because my instinct tells me that acting unawares is not relevant here at all. This is a result-based prohibition. It is forbidden for you to have leaven in your house. If you have an action-prohibition, then if you did the action while acting unawares, it is not considered that you did the action. But in “it shall not be seen,” it is not a question whether the action is attributed to you or not; this is not a prohibition on an action. If you have leaven in your house, you violated “it shall not be seen.” It may be that you are not guilty, so you will be considered under duress—fine. But you cannot say that because of acting unawares you did not commit a transgression. That sounds very strange to me. Now Rabbi Akiva Eiger in responsum 8—I won’t have time to go through all of it—but he says as follows. In the chapter “How the Foot Causes Damage,” right? He discusses the question of someone who does not know that this is prohibited labor—whether one is obligated to stop him. Right? You see someone doing labor on the Sabbath and he does not know that this labor is prohibited. All right? Do you have to stop him? Do you have to tell him, listen, don’t do this action? And in the chapter “How the Foot Causes Damage,” Rabbah said: if a stone was lying in his lap—with regard to the Sabbath, the Torah prohibited only intentional labor. There, there is someone who had a stone lying in his lap, and they bring a whole series of laws on page 26, a whole series of laws in such a situation. Regarding damages, if he suddenly stands up and the stone falls and causes damage, he is liable. A person who causes damage—one is always forewarned—and a person who causes damage is liable even under duress. Regarding the Sabbath he is exempt, because the Torah prohibited only intentional labor. And there is a whole additional series there, but for our purposes damages and Sabbath are what matter. So he says: this is difficult for me, because Tosafot in tractate Sabbath, in the chapter “The Great Principle,” and the gist of their words is that one who intended to cut detached produce—that is, he thought it was detached and it was actually attached—is considered to have accomplished what he intended, unlike Rashi. This is what we saw from Tosafot: it is considered that his intention was carried out, except that he is exempt for another reason, from the verse “wherein he sinned,” excluding acting unawares. Meaning, this is not a matter of intentional labor; this is how I began all the lessons on intentional labor. There is no problem here of intentional labor. In principle it should have been prohibited. Because of the exemption of acting unawares, derived from that word, he is nevertheless exempt. Okay? But from the standpoint of intentional labor there is no exemption here. So he says: and this is true in all prohibitions—that if someone thought this animal was ordinary unconsecrated meat, but it was consecrated, and he slaughtered it outside the Temple, he is exempt. And if he intended to cut this attached item and cut another attached item, and things like that, elsewhere he is liable. For if he intended to slaughter this consecrated animal outside and slaughtered another consecrated animal outside, he is liable. But on the Sabbath he is exempt, because his intention was not carried out; he did not want to cut this one. That is intentional labor. If so, here, where there was a stone in his lap and he did not know about it, so he thought he was doing no labor at all—even without the reason of intentional labor he should be exempt, because this is no worse than thinking something was detached and finding it attached. He did not know there was a stone in his lap on him. So why on the Sabbath, were it not for intentional labor, would he be—right? After all, the Gemara says that on the Sabbath he is exempt because the Torah prohibited only intentional labor, which implies that without the reasoning of intentional labor he would be liable. He says: why? This is acting unawares. It does not say this in the Gemara at all, and that is a big question. He himself later offers an explanation. But let’s say carrying, for example—suppose I carried it from a private domain to a public domain or something like that.

[Speaker D] Or I broke something, harvested, cut something with the stone.

[Rabbi Michael Abraham] If he does not know, then yes indeed, the same question. Why? That is what he asks—it should be acting unawares; that is his question.

[Speaker D] No problem, so—

[Rabbi Michael Abraham] It is just a plain question on those Talmudic passages.

[Speaker D] Carrying is sort of a question about…

[Rabbi Michael Abraham] It doesn’t say carrying there; I am only bringing carrying as an example. Doesn’t matter. It says there that on the Sabbath he is exempt because of intentional labor. Fine, you are proposing a different resolution. Fine. He didn’t think it was about carrying, or he thought it applies to carrying too. So he says: basically this is no stronger than someone who thought this was detached and it turned out to be attached, if he did not even know there was a plant there. Okay? This is no stronger than someone who thought this plant was detached and it turned out to be attached. Okay? So this should be easier than acting unawares, even; so why do you need the exemption of intentional labor? Even without the exemption of intentional labor he should have been exempt by the law of acting unawares. So actually I don’t fully understand the difficulty, because you could say: yes indeed, there really is an exemption of acting unawares, and besides that there is also an exemption of intentional labor. In the laws of the Sabbath specifically there is also an exemption of intentional labor in addition to the exemption of acting unawares. Fine, but that is his question. And see the Maharsha, who says that according to Rabbi Yehuda we do not derive “excluding acting unawares” in a case where he thought it was permitted and it was forbidden, since if he erred regarding this piece he is liable; and so too on the Sabbath in such a case, where he dealt with this piece, that is intentional labor because his intention was carried out. But this is difficult—never mind—he rejects that whole line.

[Speaker D] But that really is more like an unintended act than acting unawares.

[Rabbi Michael Abraham] Why? He did not know there was a stone in his lap. That is exactly acting unawares. No, an unintended act means he knows everything.

[Speaker D] Knowing or not knowing is something crucial, but this is more an unintended act than acting unawares, because he is doing something completely different.

[Rabbi Michael Abraham] No, it’s not certain that he is doing something else at all. He is doing something with the stone, in his sleep or something like that. He is doing something with the stone; he did not know the stone was on him.

[Speaker D] No, but he finds—in an unintended act it is not clear whether he has to know the possibility or not know it.

[Rabbi Michael Abraham] Yes, he has to. Yes, that is clear. He has to know. If he does not know, that is acting unawares. We already discussed that, didn’t we? It is acting unawares. Without that, it is acting unawares. No, unequivocally. If he does not know that a furrow could be made here, that is acting unawares, not an unintended act.

[Speaker D] He doesn’t know, he didn’t think about it.

[Rabbi Michael Abraham] Fine, that is acting unawares. So Rabbi Akiva Eiger introduces a major novelty, and it seems to me to be a new idea: that when we exclude from “wherein he sinned” acting unawares, it is not that acting unawares means no transgression happened at all. Rather, it is called a transgression done inadvertently, and only in such inadvertence do we exclude it from “wherein he sinned,” so that he is exempt from a sacrifice. But nevertheless it is still considered an inadvertent violation. So this is a major innovation. Rabbi Akiva Eiger wants to claim that in acting unawares there is a prohibition; it is like inadvertent sin, except that regarding acting unawares there is a special novelty that for this kind of inadvertence one does not bring a sacrifice. Or in other words, the exemption of acting unawares is an exemption due to lack of culpability, not due to lack of transgression. That goes against the whole line I have been developing until now. And then he wants to say that in the case of intentional labor there, with the stone that was in his lap—right?—why do I need the fact that this is intentional labor? After all, without that he should have been exempt by the law of acting unawares. Because without that, if it were merely acting unawares, he would not be exempt. Acting unawares is still prohibited. Therefore he says: no, here there is intentional labor, therefore it is permitted. His claim is that without—now, as I said before, the difficulty is not much of a difficulty. I can say that there is an exemption of intentional labor in addition to the exemption of acting unawares, okay? Besides that, what he says is itself difficult, because as we have seen all along, acting unawares clearly involves no prohibition; it is not a matter of the absence of culpability. And since the difficulty that led him to that necessity is not really a difficulty, I think this is a strained position. I can’t get into the continuation here. The practical implication that he brings—I mentioned it earlier—I’ll only mention it now and with this I’ll finish. Earlier I said: what practical difference does it make whether there is a prohibition here or there is not? After all, you don’t know you are doing it at all. We discussed why it says “exempt” and does not say “permitted,” at the beginning of the lesson, right? Exactly. It matters when you see someone else doing it. Therefore this is the discussion here. You see someone else doing it, or let’s say you see your slave performing an action while acting unawares. Now, the requirement that one’s slave rest on the Sabbath is incumbent upon you; you are obligated to see to it that your slave rests. Now if one who acts unawares did not commit any transgression at all, then there is no problem; you have not violated the requirement that your slave rest. But if he did commit a transgression even though he is acting unawares, but you know that he is doing something prohibited, then you must stop him. Or just some other person, not a slave. The question is whether to prevent him because there is a prohibition here, or not to prevent him at all. Okay? That is basically the claim; that is the practical implication. But again, for our purposes, I think it is quite clear that acting unawares contains no prohibition whatsoever, and there is no need to say otherwise and no reasoning to say otherwise. So we’ll stop here. That concludes the matter of acting unawares.