Torah Study – Lesson 2

[Rabbi Michael Abraham] Last time I began talking a bit about yeshivah-style thinking, the Brisker approach, what some people call the method of understanding, and basically I described a certain development of an analytical form of thinking in the world of Torah study. Its first signs already existed in earlier generations too, but it underwent major development or conceptualization with Rabbi Chaim of Brisk. And I tried to say a bit about that method, I started to say a bit about that method. I described how it developed, and I said that its essence is really the conceptualization of forms of thinking that had already been practiced earlier, as often happens with regard to new ideas, where in fact you can find them in earlier stages or earlier literature, but there’s a certain stage in the development of the idea where someone puts a finger on it, conceptualizes it, defines it, and puts it into our toolbox. And now that gives it two main advantages. From Aristotle onward, in the Organon, with logic, there are two main advantages. One advantage is that we can actually discuss these tools themselves. Now the subject of discussion doesn’t have to be Talmudic topics, where we use the tools to deal with topics; rather, the subject of discussion can be the tools themselves. Now it becomes possible to talk about the tools, just as we know that after Aristotle suddenly logic became a field of research or a field of thought. Before Aristotle, people also used logical arguments, but logical arguments were used while people were engaged in other areas. You use logic as an instrument to deal with other issues. Once Aristotle conceptualized it and understood that there is here a general, universal system of tools, independent of content, then it became a subject for study and examination in its own right. Now you can discuss logic; there are experts in logic. Once, if you had said “an expert in logic,” people wouldn’t have understood what you were talking about. What do you mean, an expert in logic? Logic is the thing you use to deal with fields in which there are experts, but logic itself isn’t a field; it’s tools for dealing with things. And once you conceptualize, that means it becomes an independent field. I think I already mentioned that we owe the existence of the computer to this revolution of Aristotle, because our ability to produce a computer stems from the fact that we understood that there is a system of rules or forms of thought that we use, and we place the focus on the system of rules itself. And now we can—this is a system of rules: if every X is Y and Y is X then A is Y. There’s some such rule. Now it doesn’t matter who X is, who Y is, and who A is. Once we understand that there’s a mechanical rule of that sort that we can carry out without even needing the question of who X is and who Y is, then we can also build a machine that does this, and we know according to which logical patterns to construct it. That’s one advantage, that you can deal with the tools themselves. And the second advantage, of course, is that it places them at our disposal. Sometimes when a person is thinking about a Talmudic topic, the exact logical way to analyze the matter and solve the difficulty doesn’t occur to him. Once he has an organized toolbox, in which all kinds of tools are laid side by side—analytical tools or logical tools that are already arranged, formulated, and basically sitting there in the box—then in principle I can now open the box and say: this fits me, this fits me, this fits me, until I get to one that fits me and use it. In other words, there is a more systematic way to make use of those tools. Before that, you had to think, wait for inspiration; if you had inspiration and the right idea occurred to you, then you solved the difficulty, and if not, then not. But once we have a system of tools at our disposal that someone has already defined, then it’s easier to use them. I think I mentioned the idea I once had of making an encyclopedia of lomdus. Did I mention that? Usually when we classify subjects—halakhic subjects, say—we classify them by topic. Maimonides, or even the Shulchan Arukh, even the Mishnah, classifies things by topic. There are the laws of appointed times, the laws of the Sabbath, purities, forbidden foods, idolatry, damages—various classifications that are fundamentally thematic classifications according to content, according to subject matter. The problem with lomdus is that lomdus is types of reasoning—I think I did mention this—lomdus is types of reasoning. Now those types of reasoning don’t—they are indifferent to the question of which area you apply them in. You can apply them to the laws of the Sabbath, to offerings, to Niddah, to forbidden foods. A lomdish tool. So let’s say I wanted to make an encyclopedia of arguments and forms of analysis. The big question is how to classify it. Not a simple question. How to classify it. Maybe it’s even impossible. Because basically the principle is, say, when I write a book like Maimonides, then Maimonides knows—if I imagine myself as Maimonides—how the reader will open it: not someone who studies it as daily Maimonides from beginning to end, but someone looking for a law when he needs it. In other words, he has a question, he’s looking, he wants to know what the law is. Now I know that if there’s a question in the laws of the Sabbath, I open the laws of the Sabbath. Even within the laws of the Sabbath there is some division: I know where there is Torah-level material, where there is rabbinic material, where there are the categories of labor, where the rabbinic prohibitions are, there is also internal division within the laws. I can get relatively easily to the relevant law in Maimonides and find what the law is. There the classification is simple. But whenever I write or create a toolbox—which is basically some sort of book that gathers tools—I need to think about how the reader will open it. In other words, when the reader is looking for a certain type, for a certain item, I need to make sure he knows how to get to the place where it appears. Like a table of contents in a book. In a book you can make a table of contents because there are twenty or thirty chapters, fine, and you can go through all the chapters and that’s it. But with Maimonides you can’t make a table of contents, because in Maimonides there are endless subjects. In other words, you have to have a classification and then a sub-classification of the fourteen books, each book has sub-types of laws, yes, and within those sub-types there are chapters, each of which deals with something else. You need some kind of hierarchical classification, because otherwise the reader won’t be able to reach the detail he’s looking for. Now with lomdish arguments, how do you do that? I encounter some difficulty, I’m looking for an argument that will help me solve it, okay, I have a book here and in it are all the arguments that have been formulated until now, someone collected them here, okay, I start looking where to open it. According to what do you define an argument? When you make this kind of distinction, that’s argument A; when you make another kind of distinction, that’s argument B. It has nothing to do with content. You can’t classify it according to the laws of the Sabbath or offerings, because it has nothing to do with content; it’s something perpendicular to the question of content, yes, independent of the question of content. You need to classify it according to some logical criteria.

[Speaker B] Sure, but only if there are a large number of such thought patterns.

[Rabbi Michael Abraham] And how many are there? Right, assuming there are a large number of thought patterns. Yes, so under that assumption, there is a difficult problem of classification. I don’t know how to solve it. Whoever comes up with an idea on this, in my opinion, it’s worth millions. Millions. I’m not even speaking economically, though maybe economically too. I mean it would make an enormous contribution to Torah study. Because the feeling often is that, unlike other fields—scientific fields or different academic fields—which somehow progress, where there is cumulative knowledge that gets collected, organized, and carried forward—in other words, research continues from the stage we’re currently at—somehow in Torah study the feeling is that each of us starts from zero. There isn’t some sort of progress: okay, this we understood, this we investigated, this we arrived at, and from here we continue onward and want to conquer some territory that hasn’t yet been conquered. There isn’t an organized gathering of what is already known to serve as a platform for where to continue, something on which one can build the next stage. And I think part of the reason is that the knowledge is collected, of course. Someone who collects, say, the laws of a threefold Purim that falls on the Sabbath in a Sabbatical year—fine, then he has collected the content-knowledge from a certain point and lays all of it out. If there were lots of books, the thematic classification could go all the way. But the progress in yeshivot usually does not deal with content; it deals with methods, with forms of thought. And the question is how we can progress disciplinarily—in other words, how we can progress in methods. How can we develop new methods, use the existing methods? For that you need to know how to organize the material accumulated up to now, so it can be used and further developed. And I don’t know how to do that.

[Speaker C] There’s some kind of beginning, at least a small beginning, with the thirteen principles of Rabbi Ishmael. Yes, the thirteen principles by which the Torah is interpreted—

[Rabbi Michael Abraham] That is definitely an attempt to do something like that for the hermeneutic principles. Right. But in the reasoning of the yeshivah, in the Brisk of the yeshivot, so far there still isn’t anything. I mentioned that at the end of the Middle Ages in Europe there was what was called the method of pilpul, and there they did give names to all kinds of distinctions, and in that way made it possible to use them. I said—I mentioned, right—the Shelah and the Maharshif, who still use those names, so when they mention some question they say, “That’s a Regensburger,” and move on. Because now you already have—you already have names, you know already: the tool for dealing with that kind of question is over there, I already know where to pull it from, and so on. But of course, they had four or five of those, that was it.

[Speaker D] There weren’t more. Right.

[Rabbi Michael Abraham] The Ramchal? Yes, but those are introductions to Torah study. There there’s no classification of arguments among intellectual categories. There are others too, Kanfei Yonah, a few introductory books.

[Speaker E] What year was Aristotle?

[Rabbi Michael Abraham] Aristotle? I don’t know, a few centuries before the Common Era.

[Speaker E] So did the Sages know his rules, Aristotle’s? I don’t know. Maimonides certainly did, yes.

[Rabbi Michael Abraham] The Sages, I don’t know exactly. In the Talmud / Talmudic text there are stories here and there about meetings, yes, Rabbi Yehoshua with the sages of Athens. There was some sort of acquaintance. There was a Greek conquest here. And Aristotle was the teacher of Alexander the Great; he was Alexander the Great’s teacher, and Alexander founded the Greek kingdom here. Antiochus and all those were already after the Diadochi, meaning after the division of Alexander the Great’s empire.

[Speaker F] So is the learning here a reflection of his rules?

[Rabbi Michael Abraham] No, no, no.

[Speaker F] They discovered them, basically?

[Rabbi Michael Abraham] No, it doesn’t work in the same way.

[Speaker F] Meaning, this system of formulas, there is—

[Rabbi Michael Abraham] There are the hermeneutic principles, there are here and there certain parts, but even scriptural exegesis, most of it is not the hermeneutic principles. Meaning, you won’t find which interpretive principle is being used within the thirteen of Rabbi Ishmael, say; rather, there are all kinds of techniques that nobody really—not nobody, but there is no full classification for them. After Rabbi Ishmael there was also Rabbi Eliezer son of Rabbi Yose the Galilean, thirty-two principles, but they already—in the letter of Rav Sherira Gaon he talks about there being many more principles. Nobody collected all the principles and all the forms of thought of the Talmud / Talmudic text, and the forms of thought of the Talmud / Talmudic text are not Aristotelian logic. Nachmanides, in the introduction to Milhamot Hashem, writes that the wisdom of our Torah is not like the wisdom of astronomy and mathematics, whose proofs are conclusive. Yes, the Torah’s form of thought is not like mathematics and physics. “Tekhunah” means astronomy and “tishboret” means arithmetic. Okay? So it’s not like mathematics and physics, because there their proofs are conclusive. He thought that in physics too it’s like that; that’s not true, but there they supposedly work with mathematics, with necessary logic. In the halakhic world it’s more a matter of judgment. It’s not so structured or so analytical as in the logical and mathematical world. And therefore there is here some other logical system. And HaNazir—now this brings me back to the previous question—Rabbi HaNazir claims that the logical ABC of the system of the Talmud / Talmudic text is the thirteen principles. In other words, that is basically the alternative or additional logic present in the Talmud / Talmudic text. Gersonides comments on this, I think, on the thirteen principles, and Maimonides also writes something similar in Millot HaHigayon: “And we have rules, but this is not the place to deal with this, because it is not its subject.” When he is dealing in that book with logic, Millot HaHigayon, he says, “And we have additional rules whose place is not here.” Do you understand? That’s not part of Aristotelian logic. Good. So basically what Rabbi Chaim did in lomdus was to begin building the toolbox, yes, now in analogy to what I said until now. In other words, he began putting into the toolbox certain patterns with which one analyzes Talmudic passages and questions and answers difficulties, and so on. I mentioned Ponevezh, Slabodka, yes, that basically if you use this toolbox well—and not everything has yet been conceptualized—but it enters you if you’ve studied it enough. And that’s one of the problems, by the way, because if there were an organized toolbox, then it would be much faster to learn it. Today it takes ten, twenty years until you’re really proficient in all the tools, fifteen years until you’re proficient in all the tools and you’re already a lamdan. Okay? If there were a conceptualized system of rules, then you’d have in the toolbox, say, fifty principles for how to think, and we would only need examples, then I’d finish the yeshivah training in half a year, something like that. You’d know exactly what to do in every situation. In principle, you could give a general lecture on every topic, be a rosh yeshivah within half a year, because you know everything; everything the automatic people do, you could do too. Today, because we don’t have such an organized toolbox, you need to learn enough Talmudic passages and somehow understand from all the literature of the later authorities (Acharonim) and everything, until you basically build within yourself a kind of toolbox—but again, you don’t really build it, it enters into you. You don’t have an actual toolbox that you can go through—tool A, tool B, tool C—and check which suits me and which doesn’t, because you yourself never formulated what rules you gathered; rather, it enters you, you somehow learn it intuitively.

[Speaker B] But the tools aren’t enough; there’s also some talent for pulling out the right tool under the circumstances.

[Rabbi Michael Abraham] That’s what I’m saying, but now you have to pull out the right tool because you don’t have an organized toolbox.

[Speaker B] But even if there were a toolbox—

[Rabbi Michael Abraham] A toolbox—

[Speaker B] It still wouldn’t always be clear which tool you need to pull out.

[Rabbi Michael Abraham] Maybe, maybe that’s part of the reason it can’t be classified, I don’t know. But in principle, imagine there were a classification for lomdus, just as there is a thematic classification for Jewish law, then what would the problem be?

[Speaker B] I’m making a distinction between the tool and the instructions, the criteria for when to use a particular tool, under what circumstances that tool fits.

[Rabbi Michael Abraham] I think that distinction is not—I don’t think there really is such a distinction. The inability to classify the tools is because of this, in my opinion, or among other things because of this. In other words, it’s because the tool isn’t so sharp. You can’t say exactly that this and this type of problem is tool number thirteen, because it’s looser than that, more flexible, more overlapping. And that’s one of the—judgment?

[Speaker G] What? Judgment?

[Rabbi Michael Abraham] You can call it judgment, you can call this looseness judgment.

[Speaker G] It’s not more necessary than the fact that you have the tool. A tool gives you some way of solving things, but along with that there are surrounding things you need to use.

[Rabbi Michael Abraham] No, it’s the same thing. That judgment means that the application of the tool doesn’t stem only from the structure of the tool. You need to know where, how, according to the circumstances, according to the context, but you’re using the same tool itself. It’s just not like in logic, where given the tool, you know exactly what to do with it. It doesn’t depend on anything. No matter what you plug in for X, Y, A, and whatever else you want, the mathematics is clear; that’s why a computer can do it, okay? Here it really is something less unambiguous. I gave an example when we spoke about the hermeneutic principles; I think I gave a few examples of this. The claim was that the hermeneutic principles are indeed a conceptualization, but in a very incomplete sense. It’s not like Aristotle’s Organon. Think about verbal analogy. Verbal analogy tells me that if there are two words in two scriptural contexts, then I can compare them. But it is very far from being a certain tool that tells me the result immediately—give me the data and I’ll tell you the result. There are lots of identical words in different sections for which we do not make a verbal analogy. There are identical words in different contexts where we do make a verbal analogy with respect to one matter, but not with respect to another matter; “derive from it and from itself, and establish it in its own place.” So if I derive from it, but adapt it to the context to which I’m arriving, then it’s not mathematics where if X=Y and Y=Z then X=Z, done. There’s no question at all of how to apply it; you just need a little practice in order to learn it. But once you’ve learned it, that’s it, there are no degrees of freedom. In the halakhic context, that’s what Nachmanides means when he says it’s not like mathematics. In other words, it’s a softer tool.

[Speaker H] But actually even in statistics it’s the same problem, that if you have some data and you want to understand the data, there are statistical tools, right? But depending on which tool you want to use, the result will be something totally different. So there’s some philosophical issue of knowing which tool you have to use.

[Rabbi Michael Abraham] נכון, but that really is—say, also in statistics, like in physics—you need to distinguish between the work of the statistician in the field, where he has to use some toolbox that theoreticians developed for him. He approaches the field, encounters a problem, and needs to choose which tool from the toolbox to use. What you said is exactly right, because the question of how you choose a tool isn’t so simple. But the theoretician defines the problem for himself, the tool according to the problem; from his standpoint it’s a completely clean tool. In other words, it’s not the same as the hermeneutic principles. Probability or theoretical statistics—not on a particular case—there’s no problem, no—sometimes it’s complicated, but there’s no ambiguity. Once you explain it to me, I’ll understand why you’re right. There can’t be room for a disagreement between us. There can be room for disagreement with regard to the field. The question is which distribution you have to assume here in order to analyze this data. One person will say it’s Poisson, another will say it’s Gaussian, I don’t know exactly what. You need to see what sort of problem stands before you, and that’s a question of how you understand reality. Here it’s no longer that there is a clear tool. But say, once you use one of the distributions, you understand it completely, you know how to use it and where to use it and how to do it. So sometimes it’s complicated, I admit, complex—but it’s unambiguous. In other words, if you’re sufficiently talented then it’s completely unambiguous. And that’s exactly the difference between mathematics and physics. That’s why I said: dealing with reality versus dealing with theoretical tools. That’s what I mentioned, that Nachmanides thought physics too was like mathematics, and that’s not true. That is exactly the difference. Mathematics is like that, and physics is not like that. In physics, the big question is which tool to use in order to analyze reality, the physical circumstances I want to analyze. Okay. So last time we started with one inquiry—an “inquiry” is the basic concept of yeshivah-style thinking. I wanted to use it as an example to demonstrate some of the things I talked about and want to talk about regarding this inquiry. So I spoke about the obligation of payment of an owner whose property caused damage. My ox gored someone else’s ox, I have to pay. “If one man’s ox gores his fellow’s ox,” yes, then he has to pay. Or my ox ate through tooth and foot, or my fire spread, or a pit, and so on. That is damaging property. Now one can discuss what obligates me when my property causes damage. It is accepted by all the halakhic decisors, already by all the medieval authorities (Rishonim), that two conditions are needed. One condition is that it be my property; I’m not responsible for someone else’s property, I’m responsible for my own property. The second condition is that I was negligent in guarding. In other words, if I was not negligent in guarding, then I’m exempt. Maybe exempt as an accident, or one can discuss what exactly the basis of the exemption is, but I’m exempt if I guarded properly. So it is clear that both these conditions are required in order to obligate—that is, that it be my property and that I was negligent. The question that immediately arises once there are two conditions—that’s already a reflex.

[Speaker I] You don’t even need to say that, just what’s in my domain.

[Rabbi Michael Abraham] No, we’ll get to “in my domain” in a moment. In principle it has to be mine. As the common element among them—as the Mishnah says at the beginning of tractate Bava Kamma—“your property, and their guarding is upon you; when they caused damage, the damager is liable to pay compensation for damages from the best of his land.” “Your property.” In a moment I’ll comment about the guardian and the robber and things like that. So apparently it has to be mine and there has to be negligence in guarding. Now every beginning lamdan knows—this doesn’t take fifteen years, already in the first year you understand—that once there are two conditions, an inquiry immediately arises. And one must ask which condition is primary and which is secondary. In other words, is what obligates payment negligence in guarding, only there is a condition that this property be mine, because otherwise I’m not obligated to guard it, but that is only a condition? In principle negligence in guarding is the obligating factor. Or perhaps not: perhaps the obligation to pay is because my property caused damage. The very fact that my property caused damage obligates me to pay; only if I was not negligent, then they exempt me. In other words, negligence is not the ground of liability; rather, non-negligence is a ground for exemption. Negligence belongs on the side of exemption, on the second plane. First of all we ask: is it your property? Did it cause damage? Then you have to pay. It doesn’t matter—the ground of liability is that it is your property. Now, many times when this inquiry is presented at the beginning—yes, this is what they deal with in yeshivot when they learn Bava Kamma all year. More or less that’s what they learn there. So when they present it, at first they present it as: is it your property causing damage that obligates you, or negligence in guarding? That isn’t an accurate presentation. I’ve already met many students who got confused about this point, because obviously you need both. There is no question of which one you need; obviously you need both. The whole question is which is primary and which is secondary, or which obligates and which exempts. What’s the practical difference? I’ll get to that in a moment. So what’s the practical difference? There are many; they bring many practical differences. I said, this is what they do in yeshivot when they study Bava Kamma. More or less, for almost the first sixty pages of the tractate, that is more or less what they do. And on sixty pages not a single yeshivah finishes in a year, so understand that this is what they do all year.

[Speaker G] In Daf Yomi they finish it in two months,

[Rabbi Michael Abraham] Yes, but there they’re not dealing with conceptual analyses, and that’s why they finish. In any case, why does this analysis always accompany me? Because at some stage, when we learned Bava Kamma, I reached the conclusion that there’s no practical difference at all. No practical differences. Every practical difference people bring, I can show you that the opposite is also true. I couldn’t put my finger on even one case that would really serve as litmus paper for whether you understand the obligation as arising because your property caused damage, or because negligence in guarding caused damage. Maybe let’s take an example brought by Even HaEzel, a somewhat subtle example. Even HaEzel writes as follows: “Now, the well-known conceptual inquiry”—and he is usually the first source from whom people derive this inquiry, although it already appears before him—“is whether liability for damages is because the Torah imposed a duty of guarding on the owner, and they are liable for the deficiency in their guarding; or whether the owner is liable to pay when his property caused damage, and guarding is an exemption that the Torah gave the owner in cases of unavoidable circumstances, when he guarded properly.” Up to here, those are the two possibilities. “And from the language of Maimonides, who wrote, ‘every living being,’ etc., ‘the owners are obligated to pay, because their property caused damage,’ it sounds like this is the main reason for the obligation to pay, and not that for this reason he is obligated in guarding.” Meaning, the fact that it’s my property means I have to pay, because my property caused damage. So it’s not because I was negligent in guarding; rather, the fact that my property caused damage is what obligates me to pay. Only if I guarded properly, that will exempt me, but what creates the obligation is that my property caused damage. Already there, when I read this Maimonides—last time I read this Maimonides—I commented that this is a dangerous inference from Maimonides’ wording. Because drawing inferences from the wording of the medieval authorities (Rishonim) is a very dangerous thing, even though with Maimonides the rule really is that you can infer from the wording. One of the rules regarding Maimonides is that you can infer from his wording. But here this inference relies on the fact that the two possibilities set up by the later authorities (Acharonim) are standing before us. Meaning, you say either the fact that it is my property that caused damage obligates me in guarding—or obligates me to pay—or negligence in guarding does. When that stands before your eyes and you read Maimonides, you say: he is liable because his property caused damage. So it’s obvious to you that Maimonides meant that. It’s not reasonable that he thought in the analytical language of the later authorities; he didn’t study under Rabbi Chaim. So therefore it seems to me very dangerous to infer from Maimonides’ wording toward one of the sides. And I noted, maybe last time, that it’s more correct to do this through practical differences, not through inferences from wording. Meaning, if I can see a ruling in Maimonides that is explained by this conception and not by that conception, that’s a good indication. Then I can say maybe Maimonides himself wasn’t aware of it—this is where I brought in Seridei Eish and Rabbi Yehoshua Hutner, the dispute whether Rabbi Chaim is really right in his interpretation of Maimonides or not, in general—not a particular Rabbi Chaim, but his method. And I argued that I completely agree with those who say yes, Rabbi Chaim is right. True, Maimonides didn’t think that way, but if you translate it into yeshiva language and do it properly, then yes, you have exposed Maimonides’ mode of thought. If you show me that in some practical difference of this analysis Maimonides rules one way, and that can really be explained only on the basis of one side of the analysis, then you’ve proven that Maimonides apparently understood the laws of damages that way. That’s not a textual inference anymore; that’s already proof. So it seems to me that with the medieval authorities it’s preferable to go with practical differences rather than textual inferences.

[Speaker K] But even with practical differences—if this distinction still didn’t exist in writing, then there could be some other distinction according to which the practical difference was decided. You can’t insert it retroactively; that’s a kind of anachronism.

[Rabbi Michael Abraham] No, no, but I don’t think so. Because if in fact, let’s say for the moment, the distinction didn’t exist—and by the way, I’m not claiming that Maimonides actually thought this way; I’m claiming that this is an interpretation of Maimonides, not that he actually thought this way. So now I’m saying: if these are the two possibilities before them, and in Maimonides it comes out—

[Speaker K] But there could be a different cut, a different axis of division.

[Rabbi Michael Abraham] No, no, that’s irrelevant. Even if there is another cut, it doesn’t matter. What difference does it make if there’s another cut? On this axis, what did Maimonides think? If there’s another cut, then fine, that’s another cut. But on this axis I can ask whether Maimonides thought the obligation to pay is because my property caused damage, or because of negligence in guarding. Now, you can explain it in other ways too, but I can still ask this question: what did Maimonides think? If I have a practical difference in Maimonides that shows me that he thought like the first way, then that proves he thought like side A—not consciously, but he assumed it implicitly. Okay? So that’s textual inference—he himself then rejects it. “And from what we explained here, that according to Maimonides guards are liable by virtue of owner-status, one cannot prove that owner-status is because of a duty of guarding.” That’s what you remarked earlier. Because the Talmud says that guards too are liable when the property causes damage. The guard is really someone with whom I agreed that he will watch my property so that it won’t be damaged. I entrust my property to him so he’ll watch it so it won’t be damaged or stolen. But who has to watch that property so that it doesn’t cause damage? That too has to be watched. So the Talmud says that the guard steps into the owner’s place. Meaning, the guard has to watch the property in his possession. Then the question arises: apparently from here there’s clear proof that ownership is not required, right? Negligence is enough—if you were negligent in guarding, you’re liable, and ownership isn’t needed. But of course, if we understand that this simplistic formulation is not correct, then according to all opinions both are needed. According to all opinions both are needed: one must also be the owner, and there must also be negligence in guarding. And why? Because you are obligated to guard only something that is yours. If it’s not yours, why should you be obligated to guard it? Therefore here it’s clear that the law of a guard cannot decide this conceptual inquiry. Because the guard is obligated in guarding the item as if it were his—that’s the contract. Consequently, whether you hold that your property must cause damage in order for you to be liable, or whether you hold that there must be negligence in guarding, the law of a guard works either way. And “if he did not guard it,” which is written in the verse, teaches you that a guard, since he is obligated in guarding the item, is considered like an owner for this matter. The very fact that he is obligated to guard the item—if he weren’t the owner, why would he be obligated to guard it? So for the laws of damages, the guard is considered an owner. By the way, this has implications, for example, in the context of the topic of ‘his possession’ in tractate Pesachim 31, regarding “it shall not be seen and it shall not be found.” If I have leavened food deposited with me under paid guardianship—an unpaid guard is more problematic; under paid guardianship. So the Talmud says there that I violate “it shall not be seen.” It’s not my leavened food—“your leavened food shall not be seen,” your leavened food. Someone else’s leavened food that is in my possession, I don’t violate “it shall not be seen.” Now if I’m a guard, this is someone else’s leavened food, so why should I violate “it shall not be seen”? The Talmud understands that paid guardianship contains an element of ownership. Meaning, this leavened food is in a certain sense mine—again, not completely; I obviously have to return it—but in a certain sense it is mine. That’s also what you see here, and therefore Even HaEzel indeed rejects this; he says one cannot prove from the law of a guard that it doesn’t have to be his property, for guards were included by the phrase “or if he did not guard it.” For one can say that whoever has a duty of guarding has the status of owner regarding damages, and that itself is what was included by “or if he did not guard it,” while the obligation is always because of one’s property. Then he goes through various practical differences, various proofs. The first practical difference is the guard, the second practical difference is the robber—because a robber too has certain acquisitive rights through robbery. So those practical differences won’t help. Then he brings another practical difference—let’s skip that. “Now the practical difference from this conceptual inquiry can be explained as follows: if the owner did not guard his animal and then someone else guarded it—for example, the owner left the door open.” Right? You have an ox and you leave the barn door open. “And another person came and closed it.” Someone else, not you, not the owner of the ox, came and locked the door in front of the ox, making sure the ox was guarded, “and it tunneled out.” Okay? Then the ox got out despite the fact that the door was locked—it made some tunnel under the door. “Here one cannot invoke the rule of ‘it began in negligence and ended in unavoidable circumstances’”—never mind, he explains why not; I don’t know why he needs that explanation, but whatever. There’s no connection between the negligence and the unavoidable event. When there is a connection, then it’s not “it began in negligence and ended in unavoidable circumstances.” Meaning, my negligence is not what brought about the unavoidable event in the end. Therefore this isn’t connected to the topic of “it began in negligence and ended in unavoidable circumstances.”

[Speaker L] But it began in negligence because the door was open. Right? So that’s beginning in negligence. Right. And in the end it was unavoidable circumstances.

[Rabbi Michael Abraham] Right. But there’s no connection between the negligence and the unavoidable event.

[Speaker L] There is a connection—the ox saw the gate open, so it dug underneath.

[Rabbi Michael Abraham] No, it dug when the gate was closed.

[Speaker L] Because it knew it could dig there because it saw it open.

[Rabbi Michael Abraham] Ah, okay, so he says there is a connection. On the simple reading, there’s no connection. The Talmud says “it tunneled there”—not the Talmud, the medieval authorities—at the beginning of the chapter HaKones they discuss there “it began in negligence and ended in unavoidable circumstances,” and they ask that in Bava Metzia, in the laws of guards, you see that there has to be a connection between the negligence and the unavoidable event, so why not here? Meaning, they assume that tunneling is considered a case where there is no connection between the negligence and the unavoidable event. Fine, in any case this doesn’t belong here, “it began in negligence and ended in unavoidable circumstances.” Now the question is whether he is liable or not. So he says: “According to reasoning, it depends on this very law.” By reasoning it seems that it depends on the same conceptual inquiry we spoke about before. Why? “For if liability to pay is because of the duty of guarding”—meaning, if the cause that obligates me to pay is that I was negligent in guarding—“then the essence of the obligation…” Wait, what do you say before I read what he says?

[Speaker K] Exempt? Exempt? Liable.

[Rabbi Michael Abraham] He was negligent, right?

[Speaker K] So if that’s the responsibility, also for the damage?

[Rabbi Michael Abraham] Right, he was negligent.

[Speaker K] No, he said: I was negligent yesterday, and today damage happened—what’s the connection?

[Rabbi Michael Abraham] I was negligent in guarding the animal—

[Speaker K] Yesterday I left the door open, today I closed it, and in the evening the ox got out. Am I liable? Are you going to investigate all my negligent acts?

[Rabbi Michael Abraham] No, but I didn’t close it—someone else closed it. That doesn’t matter; the ox got out when the door was open.

[Speaker K] But no—

[Rabbi Michael Abraham] Open from my standpoint. Someone else closed it. That’s not like I opened it in the morning and closed it in the evening and then it got out—that’s irrelevant. Rather, the ox got out before I fixed what I had done; someone else closed it in my place.

[Speaker K] I wanted to go out and close it, and I saw someone had closed it, so I didn’t go out. That’s not relevant?

[Rabbi Michael Abraham] It’s not—

[Speaker K] That’s definitely my negligence.

[Rabbi Michael Abraham] Okay. So in any case, Even HaEzel says what you’re saying. But why did I stop and ask you? Because really I could take this in both directions. Okay? But he says: “Then the essence of the obligation is not to leave an animal unguarded. And since in fact it was guarded, even though the guarding was not done by the owner, nevertheless they did not in fact have an unguarded animal.” So he says like you: if the side is that negligence in guarding obligates, then in such a situation he would be exempt, because the animal was guarded. Okay? “But if we say that the exemption is because of unavoidable circumstances, and with regard to unavoidable circumstances the Merciful One exempted him, as the Talmud says at the beginning of HaMani’ach, but the very obligation to pay for damage by one’s property is the primary law”—meaning, if the obligation to pay is because one’s property damages, and negligence is only a ground for exemption, meaning that if I was not negligent I am exempt—“then one cannot invoke unavoidable circumstances here, since he did not guard.” Why did he not guard? And how can he claim unavoidable circumstances? Again, of course, I can switch it around. Right? Right, also there, also there he didn’t guard at all.

[Speaker J] Right. I completely agree.

[Rabbi Michael Abraham] Exactly. I completely agree. Why wasn’t he negligent? Why? Because it was guarded. What does “negligent” mean? In practice, the animal was guarded. So what if I was negligent? Like with the morning and evening case, what you said earlier. You see that I can push both sides of the conceptual inquiry in either direction. This is a classic case. In this conceptual inquiry, I can show you all the lectures by yeshiva heads, all the practical differences they bring for this inquiry—every one of those practical differences can be seen the same way. They can all be seen the same way. This really is one of the most deceptive conceptual inquiries I know. There are others, but this really is something very deceptive. “And how can he claim unavoidable circumstances? And it is not comparable to ‘he left it in the sun,’ etc.” That’s basically what he says. Never mind, there are many more practical differences here. Let me maybe give you another example: “permitted” or “overridden.” Maybe I spoke about this once. The question of “permitted” or “overridden,” right? Is saving a life on the Sabbath a complete permission of Sabbath prohibitions, or are the prohibitions merely overridden on the Sabbath? On that too, in my opinion, there is no practical difference at all. Not even one. Everyone agrees about it, and people have written whole systems about it, and practical differences, and medieval authorities and later authorities and halakhic decisors. I don’t know of a single practical difference in the world for this inquiry.

[Speaker K] There is one. What is it? The question of the person accompanying the man in danger. Right. There’s a practical difference also regarding permitted and overridden. Why? I’m telling you from a real-life case I had.

[Rabbi Michael Abraham] But I’m asking why that’s Jewish law, not a conceptual inquiry.

[Speaker K] I had a person in a hospital on the Sabbath. Okay. And on the way back he needed to go up in an elevator. Am I allowed to go up in the elevator?

[Rabbi Michael Abraham] Now I’m asking why that depends on “permitted” versus “overridden.”

[Speaker K] It seems to me that if it’s “permitted,” then yes, I go up in the elevator. The whole case is one rescue operation.

[Rabbi Michael Abraham] So now you went with the patient. Fine. Now there’s a patient in a hospital in Metula, so should I now turn on a light at home because it’s “permitted”? Then there’s no Sabbath anymore.

[Speaker K] No, I returned. The whole thing is one operation. I took him from the house all the way back home.

[Rabbi Michael Abraham] What does “one operation” mean? But you don’t need that in order to save him. What is permitted is only what you need in order to save him. Not that the Sabbath has now been entirely permitted because there’s a patient. So decide. If it really is required in order to save him, then of course.

[Speaker K] I need to bring—

[Rabbi Michael Abraham] Him home. No problem. But if it’s required in order to save him, then whether it’s “permitted” or “overridden,” it’s permitted for you. If it’s not required in order to save him, then even if it’s “permitted,” it’s forbidden, because what was permitted was only what is required for his rescue.

[Speaker K] Turning off the car when you bring a woman in labor on the Sabbath.

[Rabbi Michael Abraham] Same thing. What’s the difference?

[Speaker K] So I have to leave it running?

[Rabbi Michael Abraham] I’m saying, what difference does it make whether it’s “permitted” or “overridden”? If it’s “permitted”… no, what are you talking about? Is that necessary for the rescue?

[Speaker K] I don’t know what—

[Rabbi Michael Abraham] If it’s necessary for the rescue, then it was permitted. If it’s not necessary for the rescue, then it wasn’t permitted.

[Speaker M] What difference does it make whether it’s “permitted” or “overridden”? No, the standard practical difference: there’s a non-Jew in the next room. Right. It would take him a second to turn it off. If it’s “permitted”—

[Rabbi Michael Abraham] What are you talking about? It doesn’t matter that there’s a non-Jew there. I can—

[Rabbi Michael Abraham] Of course not. “Permitted” means they permit it to you when you need it for the rescue. But if you have a non-Jew through whom it can be done, then you don’t need to desecrate the Sabbath in order to save him, so they didn’t permit it to you. There—I’m showing you that they didn’t. That’s a good argument that they didn’t. What they permitted, of course, they permitted—but it’s not ownerless chaos. The Sabbath did not disappear from the world. They permitted a thing where I need to desecrate the Sabbath in order to save the person. But if I have a way to save him without desecrating the Sabbath, who says they permitted desecrating the Sabbath? Yes, there are those who would say so, but that’s not connected to “permitted” and “overridden.” Now there is, for example, the view of the Maggid Mishneh and Rabbi Chaim, who as is well known was very stringent in the laws of saving life—the famous story that he wasn’t lenient in Sabbath law, but rather stringent in the laws of saving life. Rabbi Chaim and his school follow the Maggid Mishneh. Here they are very lenient: that saving a life is a complete permission—meaning, there is no Sabbath and nothing at all once there is danger to life. That’s what Rabbi Soloveitchik writes in Halakhic Man about Rabbi Chaim’s fear of death, “halakhic man.” It’s a bit the opposite of what we might have thought, but it’s very true.

[Speaker C] That the Sabbath is overridden. What? Maimonides writes that the Sabbath is overridden.

[Rabbi Michael Abraham] Yes, I said—but one has to be careful with textual inferences from the medieval authorities. “Overridden” means: you needn’t worry; in other words, it is set aside. And especially when there is no practical difference. If there’s no practical difference, then certainly he doesn’t need to be careful with his wording. I’m saying I know of no practical difference at all. Someone once wanted to tell me—or maybe I once thought of this, I don’t remember—whether one has to repent. I desecrated the Sabbath in order to save a patient. If I committed a transgression, right? It’s overridden, but in the end I committed a transgression. Do I need to repent, like for something accidental or something? And if it’s “permitted,” then I committed no transgression at all, so no repentance is needed. But that too is not correct. After all, part of repentance is accepting upon myself that I will never return to that sin. So what now? If next Sabbath there is a patient, I won’t return to that sin? I won’t save him anymore? But it’s not a sin. Jewish law itself not only permits me to do it—it instructs me to do it. So how can you say I need to repent for obeying Jewish law? The Holy One, blessed be He, should repent for putting me into a situation that forced me to desecrate the Sabbath in order to save the person. What does that have to do with me? In that situation I fulfilled what Jewish law imposed on me. There is no practical difference at all. Everyone talks about it, but there is no practical difference in this inquiry. I know of no practical difference. Yes?

[Speaker N] Doesn’t that mean that these are really just two names for the same concept?

[Rabbi Michael Abraham] Maybe. So here I’m saying that’s an interesting question. There, you already said something about the second side. Let’s discuss that a bit. There is an approach in philosophy, and also in law, called positivism. And positivism basically claims that if—say, in the scientific context—there are two theories that cannot be distinguished by any empirical experiment, then that’s the same theory. It’s not two theories. Meaning, if—and it doesn’t matter if they use completely different language and a completely different viewpoint—but if every experiment must show the same result according to theory A and according to theory B, meaning there is no experiment that could decide which of the two theories is correct, then it is the same theory.

[Speaker K] Meaning, no experiment has been found, or no experiment could exist?

[Rabbi Michael Abraham] No—no experiment could exist. Right. If we just haven’t found one, then we simply need to think more. But suppose, for purposes of discussion, Elijah comes and tells us: no, there is no such experiment—not only that you haven’t thought of one.

[Speaker K] I don’t—

[Rabbi Michael Abraham] It’s not exactly only Elijah; sometimes one can prove the equivalence of theories, a mathematical proof that the theories are equivalent. Here, I’ll give you an example. In optics, for example, the standard formulation—the one you learn in high school—is geometric optics. Meaning, there’s a ray of light, and it passes from one medium to another, and then the angle is refracted; there’s Snell’s law that determines the ratio between the angles. And refraction and diffraction, all kinds of things like that. Then that law tells you what the path of the light will be. Meaning, tell me how it exits and I’ll tell you what the path of the light will be. Now there’s a principle saying that you can formulate all of geometric optics, with all its phenomena, through one principle only: light always chooses the shortest path in terms of time. Right? Not distance. People sometimes make that mistake; it’s the shortest path in terms of time. That’s it. Now one can prove mathematically that this is completely equivalent. So those are two formulations that are completely equivalent. Do you understand that these are utterly different conceptual worlds? They are different theories. Here light is making teleological calculations: it says, wait, let’s calculate—how long will this route take me, how long will that route take me—and it chooses the shortest route. Okay? In the Snell formulation, or the usual formulation, the light makes no calculations at all. It just proceeds according to the rules. It knows that when it encounters this kind of medium it has to refract this way, when it encounters that kind it has to refract that way. Right? It’s like potential versus force in mechanics. Right? Yes—potential is a teleological view, and force is a causal view.

[Speaker B] No, the light doesn’t follow the equation; the equation describes the behavior of the light. The behavior of the light may be according to minimization in time.

[Rabbi Michael Abraham] So I’m saying—

[Speaker B] The fact that one is not an explanation and the other is a description—

[Rabbi Michael Abraham] They are both descriptions. The light also doesn’t—

[Speaker B] No, the second is—

[Rabbi Michael Abraham] It’s also an explanation. I’m describing how it refracts; Snell’s law determines the ratio between the angles. You can say that that too is a description. This is a causal description and that is a teleological description. In theory, this light too could perhaps make forward calculations—we don’t tend to think—

[Speaker D] that lights do calculations, but—

[Rabbi Michael Abraham] I wrote something on the website some time ago, some column about intelligence, and I argued there that according to the accepted definitions of intelligence—say, in artificial intelligence—they ask what kind of intelligence a computer has, what kind of intelligence this or that animal has. I claim that a computer and an animal have no intelligence whatsoever. Not low intelligence—zero. Intelligence exists only in a creature that has judgment. Otherwise water too has intelligence. Water solves equations far more complicated than any computer—Navier-Stokes equations. Terribly complicated equations that no physicist knows how to solve except in a really trivial case.

[Speaker C] But there are photons—you send them through two slits, and you send one, and it will choose either here or there. It can choose, but once you put an observer on the photons, you get the interference, okay, so how does every photon decide where it—

[Rabbi Michael Abraham] No, that’s just—it’s not related to what I’m saying. That’s just one of the puzzles of quantum theory. It’s not related to what I’m saying. However you explain what I’m saying now, you can ask the quantum questions, and I have no answers. But I’m saying: here you have two theories that are completely equivalent—the teleological theory that light chooses the shortest path, and the causal theory that when light encounters something, such-and-such happens to it. These two theories are completely equivalent; you can prove it mathematically—you don’t need Elijah. Meaning, wherever there’s mathematics, you generally don’t need Elijah. So every result this theory gives you, that theory will also give you, and vice versa. They are completely equivalent. But they are still two completely different theories. One views light as some kind of creature, describes it as some sort of being that makes forward calculations, and the other sees it as something acted upon by circumstances. Okay, so who is right? The positivist will say this is nonsense—there’s no right and wrong here; it is the same theory. This is just a different garment for the same theory, because the theory is nothing but the sum total of its predictions. There is nothing in a theory beyond what it says about reality—its predictions. The language in which we choose to build the theory in order to organize reality is our own business; do whatever you want.

[Speaker K] Can one argue otherwise? Can one argue otherwise? Of course one can.

[Rabbi Michael Abraham] I, for example, think otherwise. I think these are two different theories; true, there is no practical difference between them, and still it is a very interesting question whether light makes forward calculations or whether light is acted upon causally. You can ask this metaphysical question, even though we have no empirical way to decide it. But the fact that we have no empirical way to decide doesn’t mean there aren’t two possibilities. I can ask whether fairies exist or don’t exist. I have no empirical way to decide whether they do or don’t, because not having seen them is no proof. Does that mean the question is meaningless? No. Maybe either fairies exist or they don’t; I just don’t know how to decide. For the positivist, the question whether a fairy exists or not is devoid of meaning. The concept of a fairy is meaningless. There’s no such concept. Because if you can’t observe it, you can’t talk about it. What? Fairy.

[Speaker J] Fairy, fairy. Tinker Bell. Positivist.

[Rabbi Michael Abraham] What, you’ve never encountered one? So I’m saying that once you have two theories—this brings me back to positivism—once you have two theories that predict exactly the same result, like “permitted” and “overridden,” or like, if I’m right here, that there is no practical difference between the two sides of Even HaEzel’s inquiry, then are these really two theories at all? I think yes. They are two theories that cannot be decided between, but they are still two theories. Fine. So a practical difference for the betrothal of a woman—the question whether it is two theories or one. What do we do with that practical difference?

[Speaker K] Let’s go back for a moment to the guard and his money. I’m obligated—I rented you an apartment and under the contract I was obligated to insure it. Fine, I insure it.

[Rabbi Michael Abraham] Is that a question in Jewish law, or a question related to what we were discussing?

[Speaker K] No, in Jewish law, in terms of Jewish law.

[Rabbi Michael Abraham] What we were discussing before—because it’s a shame to get into rental law. Yes.

[Speaker K] There is a practical difference—no, a real practical difference. I was negligent, I didn’t do my duty, and no damage occurred. Do you have any claim against me? A grievance? Would a decent person do such a thing? Meaning, there’s also—if I have—

[Rabbi Michael Abraham] You may have a claim, but I have no tort claim. What am I supposed to do with that claim?

[Speaker K] There’s no practical difference there? Maybe I’m disqualified from testimony? I don’t know—softer practical differences that cause a person—

[Rabbi Michael Abraham] And that depends on the question whether damages are—

[Speaker K] one’s property or negligence.

[Rabbi Michael Abraham] But it’s not a case of one’s property causing damage. When property damage occurred, I ask why I have to pay: because my property caused damage, or because of negligence in guarding?

[Speaker K] I left the gate open and it didn’t go out. Am I wicked? Am I wicked?

[Rabbi Michael Abraham] Wicked—you could be wicked in any case. Still, if you left it open and it didn’t go out, that’s not what I meant. But the question when you have to pay is why you have to pay—that’s the question we’re asking. This is not a question of prohibition. The question is: what is the tort basis? Yes, exactly. And by the way, many people make this mistake here—never mind, that already touches on other issues in damages, where they mix up the prohibition with the tort basis. In any case, so apparently there is no practical difference at all. There is one practical difference that I do understand. And there it seems persuasive. This practical difference—though everyone brings this practical difference there—is: on whom does the burden of proof rest? My ox gored my fellow’s ox, and I claim that I guarded properly, so I’m exempt. And the injured party claims that I was negligent in guarding. There’s a dispute, no witnesses—what do we do? “The burden of proof is on the one who seeks to extract money,” no? So apparently, the one who seeks to extract money from his fellow bears the burden of proof: he wants money from me, so the burden of proof is on him. On this, the Chazon Ish and the Pnei Yehoshua disagree. The Chazon Ish claims that the burden of proof is on the owner of the damaging ox, to prove that he was not negligent. And the Pnei Yehoshua claims that the burden of proof is on the injured party, because the one who seeks to extract money from his fellow bears the burden of proof—exactly what you said. The Pnei Yehoshua is somewhere there on page 56, on the topic of “placing his fellow’s animal”—that’s the Talmudic topic there. Usually all the lectures connect this to Even HaEzel’s conceptual inquiry.

[Speaker C] Why does the Chazon Ish say that?

[Rabbi Michael Abraham] One moment. So they connect it to Even HaEzel’s conceptual inquiry. Why? If I understand that negligence in guarding is the basis of liability, the basis of the claim, then obviously you are the plaintiff; to sue me, you need to prove that I was negligent in guarding. Without that, you have no cause of action at all. So “the one who seeks to extract money from his fellow bears the burden of proof.” So the Pnei Yehoshua holds that negligence in guarding is what obligates. Right? The Chazon Ish says otherwise—you asked why—because he holds like the other side, that’s how they explain it. What? He says the fact that my property caused damage is what obligates me. Only if I was not negligent, then they exempt me. That is a claim for exemption. Now the fact that my property caused damage is clear. We know that, and everyone agrees; there’s no dispute about it. I’m already liable. Now I want to exempt myself by claiming that I guarded properly. Prove it. You want to exempt yourself.

[Speaker C] Now you are the extractor.

[Rabbi Michael Abraham] Yes, exactly. Conceptually, you are really the extractor, because we already have a basis for liability, and doubt cannot remove a certainty. Meaning, there is definite liability, and there is a doubt that maybe you are exempt; doubt cannot remove certainty. So now prove it. So apparently this is a nice, pure, clean practical difference between these two sides, right? So no. What do you mean “right”? No, no, no. Not only is that not correct—I can prove to you from the Chazon Ish himself that he held like the second conception, and from the Pnei Yehoshua I can prove to you that he held like the first conception. I have actual proofs. Not only can I tell you: look, this can also be explained according to the other conception. I’ll show you that the Chazon Ish thought like that conception, and the Pnei Yehoshua held like this conception. Let’s start with the Chazon Ish; that’s simpler. With the Pnei Yehoshua we probably won’t have time, we’ll see. Chazon Ish—Rabbi Blumentzweig, the Rosh Yeshiva in Yerucham, drew my attention to this. I, as usual, was repeating the conceptual inquiries of the later authorities, this Pnei Yehoshua and so on. So I repeated the conceptual inquiries of the later authorities, and he told me, you’re talking nonsense. Look at what the Chazon Ish writes. I looked at what the Chazon Ish writes, and indeed that’s what he writes. What the Chazon Ish says is that the burden of proof is on the owner of the ox because his claim is an implausible claim. If the ox gored and you say that you guarded properly, that’s not plausible. Then how did it gore? Now it can happen—there are sometimes situations in which the ox gores even if people guard properly.

[Speaker L] Low probability.

[Rabbi Michael Abraham] But once—exactly, conditional probability—once the ox has gored, the probability that you guarded properly is very low, because it’s not plausible that… after all, what does it mean to guard? To guard as people ordinarily guard. What does that mean? It means to bring the situation to a point where the probability of damage is low, right? That is what it means to guard. So if you brought the situation to the point where the probability of damage is low, how do you explain the fact that the damage occurred? Meaning, this was unavoidable circumstances. That’s an implausible claim. It is more plausible that you simply did not guard.

[Speaker K] But that’s true for every such damage. Right. So it comes out explicitly that the Chazon Ish gives heavier weight—

[Rabbi Michael Abraham] Right. The Chazon Ish always says that the burden of proof is on the damager. Right. Not just in a particular case—for all situations.

[Speaker K] But that דווקא strengthens that it’s not because the main claim is that my property caused damage. Exactly. I’m saying yes. If you tried to do that, you could always bring it—after all, if you guard well, usually there won’t be damage.

[Rabbi Michael Abraham] That means that the very damage itself proves there was negligence in guarding—but the negligence in guarding is what obligates you. Only if there was damage, then apparently there was negligence—but what obligates you is the negligence, not the damage. On the contrary: why did the Chazon Ish need to reach that? Why didn’t he simply say the burden of proof is on the owner of the ox—why? Because liability for damages stems from the very fact that your property caused damage, so you are liable. You want to exempt yourself by saying I guarded properly? Bring proof. That would be the easiest explanation, right? Why did he need another explanation? Because he holds the opposite. He really holds as we said in the Pnei Yehoshua—that negligence in guarding is what obligates. Therefore, in principle, the law is that the one who seeks to extract money from his fellow bears the burden of proof. You prove that I was negligent, so that you can sue me at all. So then why does the Chazon Ish nevertheless say that the burden of proof is on the owner of the ox? Because here the claim is implausible. And this is a major novelty of the Chazon Ish, and it fits his approach very well. He has many innovations of this sort. It’s a sort of commonsense innovation—real, in the positive sense, not the negative sense. I think I mentioned this Chazon Ish in the previous lecture: he says common sense basically says that if your claim is less plausible, the burden of proof is on you. We are used to formal halakhic thinking, that whoever physically holds the money is the possessor, and whoever wants to extract it bears the burden of proof. The Chazon Ish comes and says no: sometimes the one holding the money will have to bring proof. Why? In a place where his claim is implausible. This is possession of a claim, not possession of money. Like—yes—my claim is presumed more plausible, so the burden of proof is on the other side, even though he holds the money, not me. So sometimes the burden of proof is determined by the question of who is making the more plausible claim, not by who holds the money. There—you see that the Chazon Ish, who says the burden of proof is on the damager, actually goes with the conception that does not fit that side of the conceptual inquiry. Fine. But it still could be that in one direction it does work. Meaning, the Pnei Yehoshua certainly holds that it’s negligence in guarding; the Chazon Ish does not necessarily hold that liability is because one’s property caused damage. So next lecture—because that needs a bit of time—next lecture I’ll show you that the Pnei Yehoshua doesn’t hold that way either. Okay?