Torah Study – Lesson 3
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Formulating the inquiry: one’s property that caused damage and negligence in guarding
- The burden of proof: Pnei Yehoshua, the Chazon Ish, and presumptive strength of a claim
- A methodological warning about the Brisker method and the need to read sources
- Pnei Yehoshua and the topic of inciting: exemption for one who incites his own dog
- An alternative formulation: the liability rests on the damaging body itself and its connection to horn-damages
- Resolving the exemption for inciting based on “liability on the dog itself” and distinguishing it from a person who causes damage
- The contradiction in Pnei Yehoshua and moving beyond the dichotomy: two conditions combine into one ground of liability
- Maimonides’ example in the ninth root and Rabbi Yerucham Fishel Perla
- Simplicity, the presumption of three times, and Occam’s razor
Summary
General overview
The text reformulates the inquiry into what creates liability for tort payments when a person’s property causes damage, and argues that the Mishnah and the Talmud require two conditions together: both that the damager is his property and that there was negligence in guarding it, so the precise question is what is primary and what is merely a condition. It examines the practical difference regarding the burden of proof through the dispute between Pnei Yehoshua and the Chazon Ish, shows that the common reading of the Chazon Ish is inaccurate because he ties the burden to the “presumptive strength of a claim,” and warns against confusion created by Brisker-style thinking that rushes to fit positions into elegant dichotomies without reading the source. It challenges this from Pnei Yehoshua himself in the topic of “inciting” and proposes a resolution that breaks down the dichotomy: sometimes the two elements are not primary and secondary, but instead combine into a single ground of liability, similar to resolving a parallel contradiction in the ninth root of Maimonides. It concludes with a methodological analysis about preferring simplicity, “Occam’s razor,” and the way facts can force a more complex theory.
Formulating the inquiry: one’s property that caused damage and negligence in guarding
The text states that it is necessary both that the damager be the person’s property and that there have been negligence in guarding, and therefore the inquiry is not “either negligence or one’s property,” but rather which is the main factor and which is the condition. It proposes two possibilities: either the very fact that one’s property caused damage creates liability for payment, and only if he was not negligent is he exempt; or negligence in guarding is what creates the liability, and “my property” is needed only so that a duty of guarding applies to him. It emphasizes that there are almost no practical legal consequences, and the main practical difference usually cited is the burden of proof where there is a dispute whether the guarding was adequate.
The burden of proof: Pnei Yehoshua, the Chazon Ish, and presumptive strength of a claim
The text presents the common yeshiva explanation according to which Pnei Yehoshua places the burden of proof on the injured party because negligence is the ground of the claim, while the Chazon Ish places it on the damager because the damage itself creates liability and negligence is an exemption claim. It argues that in the Chazon Ish the opposite is written: the Chazon Ish obligates the damager to bring proof because his claim—“I guarded it as people normally do, and nevertheless damage occurred”—is a less plausible claim, since the very occurrence of damage creates a probabilistic presumption that the guarding was inadequate. He calls this “presumptive strength of a claim” and explains that the Chazon Ish prefers the stronger claim even against the rule “the burden of proof rests on the one who seeks to extract money,” so the burden is determined not only by who holds the money but also by the plausibility of the claims. He concludes that on this reading the Chazon Ish can fit with the view that negligence in guarding is what creates liability, and the practical difference regarding burden of proof remains dependent on whether one accepts “presumptive strength of a claim” or limits presumption only to possession of money.
A methodological warning about the Brisker method and the need to read sources
The text argues that the Brisker analytical method can be misleading, because once two conceptions are defined, it becomes easy to place every dispute into the dichotomy even when the original wording says otherwise. It describes how in the yeshivot they present the Chazon Ish according to the conventional assignment without checking the text itself, because the construction “fits beautifully.” It suggests not throwing out Rabbi Chaim’s analyses as mere hair-splitting, but using them as tools for asking the right questions, and then working them through against the language of the Talmudic passage and the medieval authorities (Rishonim). It corrects an earlier formulation of his own and clarifies that the practical difference of burden of proof really does exist, except that one can neutralize it only by adding the Chazon Ish’s assumption about “presumptive strength of a claim.”
Pnei Yehoshua and the topic of inciting: exemption for one who incites his own dog
The text cites a position in the Talmud according to which if a person incites his fellow’s dog against the property of a third party, he is exempt and the dog’s owner is also exempt: the owner is exempt because he did not do the inciting, and the one who incited is exempt because he is not the owner of the dog. It raises the difficulty from the case where a person incites his own dog against his fellow’s property, where according to a position Pnei Yehoshua follows he is exempt, and Pnei Yehoshua explains this as “two people in one body,” the owner and the inciter, and just as when they are two separate people both are exempt, so too here. It defines this result as absurd if liability is based on negligence in guarding, because inciting is worse than merely leaving the gate open, and one cannot turn every damager into someone exempt by dividing him into different “hats.” It adds a similar example from formalistic thinking in the topic of “one who threw a vessel off a roof” and the possibility of claiming exemption when the same person was both the “thrower” and the “breaker” according to the approach of “following the initial act.”
An alternative formulation: the liability rests on the damaging body itself and its connection to horn-damages
The text proposes formulating the conception of “my property that caused damage” in such a way that the duty of payment rests on the damaging body itself and not on the owner, grounding this especially in horn-damages, where an innocuous ox pays from its own body and the injured party acquires rights in the body of the ox up to the amount of half-damages. It gives the example of a “desert ox” or ownerless ox that gored, where a person who comes to acquire the ox after the damage cannot do so, because the ox “belongs to the injured party” in the sense that its body is liened for payment. It emphasizes that this does not mean assigning legal personality to the ox, but rather that the Torah subjects the damaging body itself to compensation, and the owner loses out only de facto because his property is taken, not because a personal duty of payment rests on him. It adds that horn is defined on the basis of “its intent is to cause damage,” and from here there is in the Talmud a dimension of “blame,” in quotation marks, attributed to the animal that justifies the lien on its body.
Resolving the exemption for inciting based on “liability on the dog itself” and distinguishing it from a person who causes damage
The text explains that if the liability rests on the dog itself, then in a case of inciting the dog is “not to blame,” and therefore no liability rests on it, and consequently the owner also does not lose the dog through the lien on its body. It presents a distinction between “inciting” and “placing another person’s animal onto another person’s standing grain,” about which Tosafot and Rashba discuss whether this counts as a person causing damage because the damager uses the animal as a tool in his hands, unlike inciting, where the damager at most causes indirect damage and does not carry out the damaging act directly. It also connects this to the topic of “ordinary oxen are presumed guarded” and to the dispute whether half-damages are a fine or monetary compensation, and argues that the presumption seems like one that protects the ox itself until three gorings rather than merely protecting the owner. It concludes that Pnei Yehoshua’s ruling in the case of one who incites his own dog makes sense mainly if one says that the liability is generated on the damaging body itself, not if one says that negligence in guarding is the direct basis of liability.
The contradiction in Pnei Yehoshua and moving beyond the dichotomy: two conditions combine into one ground of liability
The text presents a contradiction: from the burden of proof in Pnei Yehoshua it emerges that negligence is what creates liability, and therefore the injured party must prove it; but from the exemption in the case of inciting it emerges that what creates liability is “my property caused damage.” It proposes that the solution is to reject the dichotomous assumption and to determine that the two elements together—one’s property that caused damage and negligence in guarding—combine into a single ground of liability. It formulates a cumulative model in which the liability is “generated” on the damaging body itself, and only if there was negligence and proprietary connection does the liability “pass” to the owner, so that in different places a different condition is missing and therefore different results emerge without contradiction. It presents this as a methodological rule in learning that prevents forcing every position into one of two sides, and emphasizes that one should always consider the possibility of a cumulative “both-and.”
Maimonides’ example in the ninth root and Rabbi Yerucham Fishel Perla
The text cites Maimonides in the ninth root, who counts one commandment despite repeated commands, such as twelve warnings regarding the Sabbath, and also brings the law of a “general prohibition,” such as “You shall not eat over the blood,” from which several prohibitions are derived and which is counted as one prohibition. It quotes Rabbi Yerucham Fishel Perla’s difficulty in the introduction to Saadia Gaon’s Book of Commandments, where he argues that there is a contradiction: if one follows content, one should count several in the case of a general prohibition, and if one follows the command itself, one should count twelve regarding the Sabbath. He resolves it with the same principle of combination: Maimonides counts only where there is both a separate command and unique content, so when one of the two conditions is missing, only one is counted, and there is no contradiction. He places this under the same “dichotomous fallacy” that excludes the possibility of cumulative conditions.
Simplicity, the presumption of three times, and Occam’s razor
The text analyzes why people tend toward dichotomies and suggests that this is connected to a preference for simplicity and to the search for one theory that explains several cases, as in Rabbi Chaim’s discussion of the three signs of an imbecile at the beginning of Tractate Chagigah and as in the law of an ox made forewarned by three gorings and presumptions based on “three times.” It distinguishes between a theory of “either A or B,” which is actually very complex, and a theory of one complex cause composed of two cumulative conditions, and shows that one complex cause is not the same as multiple alternative causes. It uses natural examples like igniting paper with a magnifying glass to illustrate that cumulative conditions are a normal way to explain one phenomenon. It explains “Occam’s razor” as a methodological tool for choosing between theories that fit the facts, not as a tool proving that the simpler theory is always true, and emphasizes that when the facts do not fit simplicity one must adopt a more complex theory.
Full Transcript
[Rabbi Michael Abraham] Last time we got into the common yeshiva-style inquiry around the opening of Bava Kamma: what is the foundation that creates liability when one’s property causes damage? If my property damages someone else’s property, I have to pay, and the question is why I have to pay. I said that usually people present the two sides as though it’s either negligence in guarding—that is, because I didn’t guard properly, that’s why I have to pay—or the very fact that my property caused damage obligates me to pay. But of course it is explicit already in the Mishnah and the Talmud, and agreed by all the halakhic decisors, that you need both things. It has to be my property that caused damage, and there also has to have been negligence in guarding. So this inquiry has to be formulated more carefully. The question is: which of the two is primary, and which is the condition? In other words, is it that the fact that my property caused damage obligates me to pay, and only if I was not negligent am I exempt? Or is it that my negligence obligates me to pay, except that the thing has to be mine in order for me to be responsible to guard it, because otherwise why should it matter that I was negligent? If it isn’t mine, I’m not obligated to guard it. So those are the two sides. I said that maybe the most obvious practical difference—and I said there are almost no practical differences here, if any. Truth be told, I don’t really know of a practical difference here at all. Maybe a tiny one, but much less than people usually claim. The practical difference people usually bring is the burden of proof. That’s where we ended last time. I said that if my property damaged my fellow’s property, and I claim that I wasn’t negligent in guarding it and he claims that I was, then the question is where the burden of proof lies. Before all this, the simple principle is: the one who seeks to extract money from another bears the burden of proof, right? He’s suing me, he wants me to pay him. So if he’s making a claim against me, trying to get money from me, the burden of proof is on him. So in the simple picture, without all the surrounding discussions, the burden of proof should be on the injured party. But Pnei Yehoshua and the Chazon Ish disagree about this. And usually people explain that if we understand that negligence in guarding is what creates the liability, then when the injured party comes to sue me and wants me to pay, he has to prove that there was negligence in guarding, because otherwise there is no basis for the claim at all. So the burden of proof is on him, to show that there is a cause of action in the first place. Without that, there’s nothing to discuss. But if I understand that the very fact that my property caused damage obligates me to pay, and only if I was not negligent am I exempt because I was under compulsion, then in that case the burden of proof is on me. My property caused damage, so first of all I’m obligated to pay. Now I want to be exempt by claiming that I wasn’t negligent—fine, prove that you weren’t negligent and then we’ll exempt you. But negligence there belongs to the plane of exemption, not to the plane of the liability itself. And then the burden of proof is on me. And Pnei Yehoshua indeed argues that the burden of proof is on the injured party, and the Chazon Ish says that the burden of proof is on the damager. So usually people explain this by saying that Pnei Yehoshua understands that negligence in guarding creates the liability, while the Chazon Ish understands that the mere fact that my property caused damage obligates me to pay. So last time I said that when you actually look inside the Chazon Ish, that’s not what he writes. It’s the opposite. In the Chazon Ish it says that the reason the burden of proof is on the damager is that his claim is implausible. Because he is basically saying that he was not negligent in guarding, that he guarded properly, and nevertheless his property went out and caused damage. Guarding properly means guarding in such a way that usually the property is not supposed to cause damage—as people normally guard things, yes? The Torah’s requirement to guard is meant to keep my animals from causing damage; that’s the point of guarding. So if I guarded… what?
[Speaker B] If there was some unavoidable accident or something like that.
[Rabbi Michael Abraham] Fine.
[Speaker B] Then he has to come and prove that he guarded it well.
[Rabbi Michael Abraham] Right, but I’m saying more than that. The point is that his claim is implausible because if damage occurred, the assumption is that he also didn’t guard properly. He wants to claim that he did guard properly, so the burden of proof is on him. Now that’s a different explanation from what people usually say. The explanation people usually give for the Chazon Ish is that since my property caused damage, I’m obligated to pay, and if I want exemption by claiming that I wasn’t negligent, then I’m the one trying to get out of liability, so the burden of proof is on me. On me. The Chazon Ish doesn’t say that. I’m not coming to exempt myself. Really, the injured party is coming to obligate me, and there’s no reason to obligate me. But the burden of proof is on me because I’m making the less plausible claim. I’m saying that despite the fact that I guarded properly, damage still occurred. That’s not likely. If damage happened, then it’s more likely that I didn’t guard properly. And therefore the burden of proof is basically on me. I called that “presumptive strength of a claim.” Usually we determine who has presumption based on the question of who has the money, who is trying to extract from whom. But here, says the Chazon Ish, he is trying to extract the money and I’m the one holding it, but he has the stronger claim. His claim is more presumptively true. Because if damage happened, then probably I really was negligent. And if I want to prove otherwise, the burden of proof is on me. So what comes out is that the Chazon Ish actually holds like what people usually attribute to Pnei Yehoshua. In other words, that the obligation to pay is because of negligence in guarding. Not that negligence exempts; rather negligence in guarding is what creates the liability. And therefore, in Pnei Yehoshua, where the claims were evenly matched, the burden of proof was on the injured party, just as Pnei Yehoshua says. The Chazon Ish just claims that here the two sides’ claims are not equal. One claim is weak and one is strong.
[Speaker C] But still the injured party has to prove that not… what? The injured party still has to prove?
[Rabbi Michael Abraham] Yes—well, let’s say it’s agreed that it was my ox that caused the damage. Let’s say that part we know.
[Speaker D] So according to the Chazon Ish, every time we say “the one who seeks to extract money bears the burden of proof,” we have to stop and say, wait a second, let’s look at the claims, not just the evidence. Right?
[Rabbi Michael Abraham] Right, of course, of course. I also have a few examples of that. But yes, correct. Okay, so what this means… the first point I want to note here is that this Brisker, analytical method can be very misleading. Because once we define the two possible conceptions, it becomes very easy to assign all the practical consequences to them. Immediately we see a dispute between Pnei Yehoshua and the Chazon Ish about who bears the burden of proof, and right away we assign it: okay, Pnei Yehoshua thought that negligence in guarding creates liability; the Chazon Ish says that the fact that my property caused damage creates liability; and everything fits beautifully. And that’s very interesting. You can see in all the yeshivot they bring this point with the practical consequences, and nobody has even looked at the Chazon Ish itself, where it says the opposite. Now why does that happen? They know how to read the Chazon Ish; it’s not that they can’t read. They just don’t bother reading. Because once you’re captive to the framework of the inquiry, everything fits together so nicely. The secret of Rabbi Chaim’s appeal is that his distinctions really are very elegant. His distinctions are really compelling, very beautiful distinctions, and the practical consequences emerge immediately. What’s interesting is that very often, once you actually get into the Talmudic passages or into the medieval authorities (Rishonim) that he’s trying to explain, you see that it doesn’t work. Meaning, the explanation he proposes doesn’t work. So, as I’ve mentioned before, there’s a tendency to say that that’s okay, it’s all just pilpul—Rabbi Chaim… or not the Chazon Ish, Rabbi Chaim—but basically they throw him out. In other words, they say this isn’t a correct analysis of the passage. I think that’s a mistake, as I said in the previous lecture. You need to take his analysis seriously, because these really are compelling ideas. They really are correct as concepts. It’s just that afterward you have to compare them with the actual Talmudic passage or with the wording of the medieval authorities and see that the matter requires some further processing. But that doesn’t mean… I mean, still, this inquiry helped us a lot. Because now, for example, I know that both Pnei Yehoshua and the Chazon Ish are on the side that says negligence in guarding creates liability. So I still learned something. You just have to be careful about what exactly you learned. You have to look at what the Chazon Ish actually writes. But still, if I hadn’t first put these two options on the table, it would never have occurred to me to arrive at one tort theory or another. I need these Brisker, analytical tools in order to ask the right questions. With the answers, you have to be careful. Usually Rabbi Chaim’s questions are excellent questions. The basic distinction, the dichotomy, yes—two definitions, two possibilities—that’s excellent, and it’s always worth using that in every passage. But how to use it—that’s where you have to be careful. Because you have to compare it against the passage and against the medieval authorities, and many times it doesn’t really work the way it seems at first glance. As Shmuel noted at the end of the previous lecture, I think I really did say something imprecise. I said that this practical difference is basically not a practical difference. Because we see that you can say the burden of proof is on the damager even within the conception that negligence in guarding creates the obligation to pay. So there he really made a correct point: that’s not true. There still is a practical difference here. I just have to add another assumption, namely the Chazon Ish’s assumption that there is presumptive strength to a claim, in order to neutralize the practical difference. But let’s say I did not accept the Chazon Ish’s conception, and presumption is determined only by the question of who has the money—then this practical difference remains. So the practical difference really is a valid one: the burden of proof is determined by the tort theory you hold. It’s just that there’s another rabbit I’m pulling out of the hat here, meaning there’s another line of reasoning, and it has to be discussed on its own terms. But that doesn’t mean there’s no significance to the question whether negligence in guarding creates liability or whether the fact that one’s property caused damage creates liability. It does matter. You have to examine what you say about presumptive strength of a claim, and then you have to see what you think about the tort theory itself. So that doesn’t mean there is no practical difference; it means you have to be careful with the practical difference. I’m refining the formulation now. Now let’s go—I said we’d now go in the opposite direction. Up to this point, these are things we’ve already done. Pnei Yehoshua said that the burden of proof is on the injured party, as per “the one who seeks to extract money bears the burden of proof.” And there I said that it’s very hard to understand that if I think that negligence in guarding is an exempting claim—“I wasn’t negligent” exempts me. Because if that were so, then I would expect the burden of proof to be on the damager. In other words, in that direction the practical difference really is valid. Yes, in that direction—if you say like the Chazon Ish that the burden of proof is on the damager, the question what your tort theory is remains open. Because that could be either because one’s damaging property creates liability and negligence is only an exemption claim—that’s the standard explanation—or, as the Chazon Ish himself writes, no, the opposite conception: negligence creates liability, but here there is a weaker claim, and therefore the burden of proof is on you. So if I say like the Chazon Ish that the burden of proof is on the damager, then the question what my tort theory is remains open. That’s what I meant when I said there’s no practical difference, or that one has to be careful with the practical difference. But the reverse is not like that. In other words, if I hold like Pnei Yehoshua that the burden of proof is on the injured party, then there it seems clear that the tort theory is not that negligence is an exempting claim, but rather that the obligation is because you were negligent. The obligation to pay is because you were negligent. And therefore, so long as he has not proven that you were negligent, the burden of proof is on him. I’m the defendant, and you have to show that you have a cause of action. Okay? There it does seem necessary. One direction really does seem necessary; only the other direction needs some qualification. Now I want to show you, in Pnei Yehoshua himself, an opposite line, and then I’ll also revise this point too. Just as with the Chazon Ish I qualified it, I’ll qualify Pnei Yehoshua as well. There is a very interesting passage later on in Bava Kamma. I’m not getting into the amoraic dispute there and later the disputes among the medieval and later authorities. I’m speaking according to one particular view that Pnei Yehoshua follows. And it says the following: if I incite my fellow’s dog against a chicken or against the ox of some other fellow, then I’m exempt. And if I incite that dog against the property of some third party, I’m exempt and the dog’s owner is also exempt. Why? The owner is exempt because even though he owns the dog, he’s not at fault—someone else incited it. And I’m exempt because I’m not the owner of the dog. That’s exactly the two sides: negligence in guarding—well, he wasn’t negligent in guarding; someone else incited it. And I’m not the dog’s owner, so what if I’m the one who caused the dog to damage? It’s not my dog. Therefore both of us are exempt. Fine, there’s a discussion about whether that itself says something about our inquiry, but I don’t want to get into that now. What interests me is another point. What happens if I incite my own dog against someone else’s chicken? Not my fellow’s dog; I incite my own dog against someone else’s chicken—my own property.
[Speaker F] Yes,
[Rabbi Michael Abraham] Then it’s both my property and I was negligent—in fact I incited it, which is much worse. There is a view in the Talmud that says he is exempt. In other words, if I incite my own dog against my fellow’s chicken, I am exempt, because supposedly it’s not the normal case. As if you split me in two—I’m really playing two roles here: I’m both the inciter and the owner of the dog. If those were two different people, then both of them would be exempt; that’s explicit in the Talmud. Pnei Yehoshua says that if it’s the very same person, he is also exempt. Because it is the same—
[Speaker E] He—
[Rabbi Michael Abraham] He’s wearing two hats, but really it’s two people in one body. He’s wearing two hats—the owner and the inciter—and they’re exempt.
[Speaker E] In order to be liable, you need both conditions: ownership and guarding. There one person has guarding but not ownership, the other has ownership but not guarding. Here you have both this and that.
[Rabbi Michael Abraham] Right. Yes. That statement is very problematic. By the way, I think the Chazon Ish says this too, now that we’re mentioning him, but just a second—
[Speaker E] I… and what’s Pnei Yehoshua’s reasoning?
[Rabbi Michael Abraham] One second, I’ll explain. First I want to sharpen the difficulty a little. Look, I think I mentioned once the passage in chapter two of Bava Kamma—actually the end of chapter one. Someone threw a vessel off a roof. Yes, whether we follow the initial act or the breaking of the vessel. Someone throws a vessel off a roof, and then someone else comes and breaks it a moment before it hits the ground—someone else catches it with a sword. So the question is whether the first person is liable, or the second person, or perhaps neither is liable. If we follow the initial act, there are those who want to say that neither is liable. The first one really ought to have been liable, but in the end he didn’t actually break it. And the second one broke a vessel that was already considered broken, and so it comes out that neither is liable. According to the view that neither is liable—and that is one position among the medieval authorities under the view that we follow the initial act, I think Nachmanides—what happens if I threw the vessel off the roof and then ran down quickly and also broke it afterward? It sounds like there are later authorities who want to say that I am exempt. Same thing, same idea. I’m exempt because as the thrower I’m exempt, and as the one who broke it below I’m also exempt. By the way, here it’s a little less difficult than what you said before. It’s still extremely strange, but the point you made before is a little less difficult here. I’m just showing you that this kind of formalistic thinking appears in several places. Fine, but let’s go back to our dog. How can one understand such a thing? On the face of it, it is completely far-fetched. Why? Think about what happens if I simply didn’t guard the dog. I didn’t incite the dog; my dog was sitting in its kennel and I left the door open and it went out and caused damage. What’s the law? Liable, right? That’s the classic case of tort liability. Now not only did I fail to guard it—I incited it. I caused it to damage. What is this doctrine of two hats? What does that even mean? So in every damaging case you could say: the one who left the door open is one person, and the one who owns the dog is another person. In this case those two people happen to be inside one body. You could exempt every damager that way. After all, the one who incites is only worse than the one who left the door open. How can you say that one who incites his own dog should be exempt? It’s simply impossible to say, completely absurd. How can one say such a thing? It seems to me that the only way to understand it is to go back to the inquiry I mentioned before, and now you’ll see how it can be understood. When I say that the very fact that my property caused damage obligates me to pay, that can be formulated a bit differently. And at least with regard to horn-damages, I think there’s a much stronger basis for it. Maybe even with regard to other damages. You know that an innocuous ox that caused damage pays from its own body. Meaning, the ox itself that caused the damage belongs to the injured party. It’s not that I, as the owner of the ox, have to pay the injured party; rather the ox itself belongs to the injured party. What practical difference does that make? Well, first of all, of course, if the ox isn’t worth the amount of the damage, then that’s that—you only get up to the value of the damaging ox. But there is another case that the Talmud itself mentions: what about a desert ox? An ownerless ox that gored. It belongs to no one. Fine. So that ox gored another person’s ox. Now I come and acquire the ox. It’s ownerless; I found it and now I want to adopt it into my warm embrace, take this ox for myself. I can’t. Why can’t I? Because the ox belongs to the injured party. He has a kind of share in it. Meaning that the ox itself, even though it belongs to no one, has tort liability on it, so to speak. Not that we need to speak in terms of liability exactly, but the point is that the Torah gave the very property that caused the damage to the injured party. Even if it belongs to someone else, of course. But it’s not a payment that I owe; rather the ox itself belongs to the injured party. Even if it belongs to me, the Torah gives it to the injured party. In other words, the Torah doesn’t care if it belongs to someone else.
[Speaker F] The owner still has a share in it.
[Rabbi Michael Abraham] Fine, but I’m saying the half—up to the value of half the damage—belongs to the injured party. I’m talking only about that part. So what does that actually mean? It means that the tort obligation of payment rests on the ox, not on the owner. Right? Even an ownerless ox is liable. Again, this is not tort liability in the ordinary sense, of course. I don’t think one has to say that the ox is a legal entity that can be sued in religious court. Rather, the meaning is that the Torah gives the body of the ox itself as compensation to the injured party. In other words, the ox itself, so to speak, has to bear the cost of compensating the damage. Okay? Now if I’m the owner, then of course the Torah doesn’t take me into account. The ox caused damage, so it belongs to the injured party. It used to belong to you? Your problem. If you guarded it properly, fine, then maybe not. But basically the ox itself has to pay on its own account. Not that I have to pay, only using the body of the ox; the ox has to pay. And understand that this is a different formulation of the conception of “my property that caused damage.” Not me. Of course if it belongs to me, then de facto I lose money because they take my ox, but that doesn’t mean a payment obligation is imposed on me.
[Speaker E] Is that true only of an ox? And why?
[Rabbi Michael Abraham] I mean… no, any horn-damage. Also a dog that gores, that bites.
[Speaker E] A biting dog—the dog belongs to the injured party…?
[Rabbi Michael Abraham] Yes, certainly. Again, up to half-damages. Right, fine. Can he pay money instead of the dog? No. He’s not liable for more; the ox is taken, the ox is appraised—that’s the dispute between Rabbi Akiva and Rabbi Yishmael. So now, if I accept this formulation, then look what comes out regarding our dog. Look: if I incite my fellow’s dog—take someone else’s dog and incite it against the property of a third party—both of us are exempt. Why are both of us exempt? I, who incited the dog, and he, who in principle is the owner of the dog—if the duty to pay were on the owner, then ostensibly he would be the addressee of the liability, but he’s not at fault; he guarded properly, so he’s exempt. Fine? But now according to my new formulation, that’s not how it works. The obligation is on the dog itself. So why, if it’s someone else’s dog, is the dog exempt? The dog that bit—that’s horn, because it causes damage intentionally. Okay? The Talmud says on page 15, “a biting dog that ate lambs,” right? So a biting dog is horn-damage. So now why is it exempt? The dog itself ought to be liable. Why should it matter that it belongs to someone else? What does ownership have to do with it? We said ownership is not the point—we are not punishing the owner; we take the dog. If it has an owner, then the owner loses because we took the dog. Fine. So here too, in this case, the owner loses, but we ought to take the dog. Why do I care that the owner is not at fault?
[Speaker D] The dog isn’t to blame.
[Rabbi Michael Abraham] Because the dog isn’t to blame, because someone incited it. Exactly. The dog isn’t to blame. I, who incited it, am the one responsible; the dog didn’t do the damage on its own. In that case the Torah did not give the dog to the injured party, because the dog didn’t do anything—I incited it. Don’t expect a dog to restrain itself when it’s being incited. When someone incites it, it gores, it bites, okay? So the dog itself is exempt. That’s what the Talmud means when it says that the dog of so-and-so, which I incited, is exempt. What does it mean that it is exempt? It means the exemption applies to the dog itself. And why? Not because I’m not the owner, but because I incited it, so it isn’t to blame. But if I’m its owner, then what happens now? That’s the point in the Chazon Ish. Now I’m the owner; I incited my own dog.
[Speaker E] What would happen if I go to my fellow’s dog kennel and release it? Not incite it.
[Rabbi Michael Abraham] Nothing, you’d be exempt and he’d be exempt. Beginning of chapter HaKones.
[Speaker E] But why isn’t the dog liable?
[Rabbi Michael Abraham] Because—wait… no, because if the owner didn’t release it… yes, if I released it…
[Speaker G] It’s like inciting. Because a dog by definition, by definition, is…
[Rabbi Michael Abraham] No, no, that’s not called inciting. The definition of inciting is precisely that it’s not just opening the door, but that I actively caused it to do this. You have to think that through.
[Speaker G] In the baraita there—
[Speaker E] The case—
[Rabbi Michael Abraham] If it’s not horn-damage, then I can say there is no liability on the dog. So maybe in horn-damages, according to this conception, perhaps the ox really would be liable. Maybe. It’s no less than a desert ox. Yes, maybe it really would be liable; I don’t know. Interesting question. That’s at the beginning of chapter HaKones, with bandits who took it out. It needs to be checked. Apparently you’d have to carve out an exception for horn-damages. In any event, what I’m saying is this: if I incite my dog, yes? So now according to the position that I have to pay because of negligence in guarding—only there’s a condition that it has to be my dog, because if it’s not my dog I’m not obligated to guard it—then of course I’m liable. Right? Isn’t this worse than negligence in guarding? I incited it, not merely neglected it. Much worse. But now let’s do the calculation according to the second position. According to the position that really my damaging property has to pay, and according to the formulation I gave earlier, meaning that the dog itself is liable—if I incited it, then the fact that I’m the owner doesn’t matter. If someone incited the dog, then the dog isn’t liable, right? The liability is not imposed on the dog itself, because someone else incited it. Okay? Once that’s the case, no liability rests on the dog, and therefore there is nothing to transfer to me either. When I pay horn-damages, that’s not a liability imposed on me; they take my dog, and only de facto it comes out that I lost that money because they took my dog. But they are not obligating me to pay; they are only taking the dog. But here the dog isn’t to blame, so they don’t take it. Since no liability rests on it, it follows that I’m exempt.
[Speaker F] But that’s your property, and if they take it from you it’s as if you’re paying. I don’t…
[Rabbi Michael Abraham] No, of course it counts as though I’m paying.
[Speaker F] But the liability—it isn’t on me. But it’s not the dog—you’re not obligating the dog.
[Rabbi Michael Abraham] Of course I’m obligating the dog.
[Speaker F] You’re not obligating the owner? No. So how does he pay? He pays by means of the—
[Rabbi Michael Abraham] I go back to what I said before: no. And that is exactly the opposite conception. No, that’s not right. I obligate the dog. I obligate the dog not because, again, it is to blame as if it were a legal entity—that’s not the point. The Torah subjected the dog to compensate the injured party for the damage that occurred. It’s not a matter of blaming the dog. Although maybe—we’ll soon see—that there is a bit of blaming involved. But the simple conception is that the Torah subjected the dog for the sake of compensating the injured party. And if the dog has an owner, then he has a problem. But it’s not that the owner has to pay and he does so through the dog. It works the other way around: the owner doesn’t have to pay, but the dog is liened to the injured party. Ah, it has an owner? It has an owner. What can you do? He has a problem.
[Speaker H] If I incite a dog, why is that considered damage by a person and not damage by property? Again—if I incite a dog, why in most cases is it damage by a person and not damage by property?
[Rabbi Michael Abraham] So that—that’s a dispute between Rashba and Tosafot, I think, at the beginning of chapter HaKones as well. If one places another person’s animal onto another person’s standing grain. There too it says he is liable, and Tosafot and Rashba there ask at the source how it can be that he is liable, since this is another person’s animal—property. So one of them says it is considered as though it were his property; if he takes the animal and places it there, it is considered like his property. And the other says—I don’t remember who says which, whether Tosafot or Rashba—that this is considered a person causing damage; it’s not property causing damage. When you take the animal and place it on your fellow’s grain, you are basically causing the damage directly. You used the animal, but it’s like hitting with a hammer. It’s not that the hammer did something; I am using the hammer to do it. But all that is when I take the animal and do the damaging act with it. If I incite a dog and afterward the dog goes and causes damage, that isn’t called a person causing damage. At most I caused damage indirectly—actively caused it, but still indirectly—but I did not take the animal and place it there so that it would damage. In other words, you can’t call that direct action that caused the damage. Okay. So going back, what comes out, I want to argue, is that one can understand Pnei Yehoshua—and it seems to me that only this way can one understand Pnei Yehoshua. No, I have a simple answer to what you asked before. If someone else opens the kennel door—wait, let’s think. If someone else opens the kennel door, then I’m exempt because I guarded properly. In other words, if I guarded properly—after all, there is an exemption if I guarded properly even in horn-damages. What does that mean? Basically the obligation to pay is on the dog. So if I guarded properly, then the Torah does take me into account and does not take my dog, because after all I would lose money. So basically the obligation is on the dog, and in principle the owner isn’t taken into account. But if the owner did what he was supposed to do, then he is taken into account, and therefore he is exempt—they won’t take his dog.
[Speaker E] And why when I incited it—why is that called “I guarded” in the sense that a third party opened it? A incited B’s dog, and B guarded it properly—
[Rabbi Michael Abraham] And therefore B is exempt. Meaning, I’m talking about when I incited someone else’s dog: I’m exempt and he’s exempt. Both of us are exempt. What I’m claiming is that in such a case the dog is exempt—not just that both of us are exempt. The dog is exempt, and therefore both of us are exempt. Why is the dog exempt? Because I incited it. It isn’t—it isn’t to blame, so to speak; it didn’t do it of its own will.
[Speaker E] If I didn’t—
[Rabbi Michael Abraham] If I didn’t incite it, then only the owner would be exempt. What?
[Speaker E] So—
[Rabbi Michael Abraham] He would be exempt on the owner’s side if the owner guarded it properly. Meaning, we don’t impose on the owner the fact that they take away his dog, because he guarded it. But if I set on a dog that is mine, okay, then I don’t have that exemption, because I didn’t guard it properly. So here you have to say: then why am I exempt? Because the dog itself is not liable. That’s the point. Meaning, if the dog were liable, then they would do it at my expense too, because I incited it, not just that I failed to guard it. Here there’s no escape from saying that the dog itself is exempt. Why is it exempt? Because it didn’t do the damage on its own, but rather was incited. And since that’s so, we don’t come with claims against it. That means that there is, in a way, some kind of give-and-take, כביכול, with the dog. But we see that anyway in the Talmud, because the Talmud says: what is goring? Why, in the case of goring, does the dog, the animal, have to pay from its own body to the injured party? Because its intention was to damage. So we see here that the Talmud does see some element of blame, in quotation marks, on the animal. Such an animal, that has intention to damage—if it damaged, then we take it as compensation for the injured party. Again, it’s not really blame, I think; maybe call it educational, call it whatever you want, but practically speaking there is some dimension in which the dog, so to speak, has to be at fault. So if I incited it, then it isn’t at fault, and so there is no liability on it. If there were liability on it, then of course that would transfer to me, because not only did I fail to guard it, I even incited it. So certainly there’s no room to take my interests into account, and they would take the dog from me—that’s clear. But if there is no liability on the dog itself because I incited it—then I myself, in damages of goring, am not liable to pay. I myself, in damages of goring, am not liable to pay; the liability is only on the dog. The Talmud there on page 15 mentions that there is a dispute whether half-damages is a fine or compensation. And the Talmud ties that—Rav Pappa and Rav Huna the son of Rav Yehoshua—the Talmud ties it to the question whether oxen are ordinarily presumed guarded or not presumed guarded. In practice, we rule that half-damages is a fine. If half-damages is a fine, that means oxen are ordinarily presumed guarded, and therefore in principle I ought to be exempt. I assumed the oxen were guarded. Only after three times that it gored can I understand that I have a damager here, but before that I am exempt. So therefore I can claim that oxen are ordinarily presumed guarded, and therefore this is half-damages as a fine. According to this approach, you have to understand: someone who incites the animal can’t make that claim. I’m just thinking about it now. Someone who incites the animal can’t make that claim—what’s he going to say, that dogs are ordinarily presumed guarded and therefore this is half-damages as a fine? What do you mean, presumed guarded? You yourself caused this damage. What does ordinarily presumed guarded mean here? You see that the argument that oxen are ordinarily presumed guarded is not an argument to protect the owner; it’s an argument to protect the dog, the ox. The ox itself, for the first three times, it’s a case, an accident; we don’t come with full claims against it, only for half the damage. Fine, that’s a question, we need to think about it more. In any case, what I’m saying is: this law of someone who incites an animal—according to Pnei Yehoshua it absolutely has to fit only the conception that what obligates payment is that my property caused damage. Right? Only that conception. If what obligates payment is that I was negligent in guarding, then if negligence in guarding obligates, incitement certainly obligates—it is far worse than negligence in guarding. How can you say that I am exempt? If you say—and I say—even if you say that the fact that my damaging property obligates me, even then you don’t have to say Pnei Yehoshua. But if you do say, like Pnei Yehoshua, that I am exempt when I incite my own dog, then necessarily you are learning that what obligates payment is that my property caused damage, and not negligence in guarding. Negligence in guarding will provide an exemption. Okay, now we have a contradiction in Pnei Yehoshua. Because now we see that Pnei Yehoshua learns that the fundamental basis obligating tort payments is that my property causes damage, right? Earlier we saw that Pnei Yehoshua says the burden of proof is on the injured party—”the one who seeks to extract from another bears the burden of proof”—and we said there that this has to follow the conception that negligence is what obligates. Right? The Chazon Ish leaves both possibilities open, but for Pnei Yehoshua it’s clear that it’s negligence, and here it’s clear that it’s the damaging property. So what do we do? Here you have another failure of Brisker thinking.
[Speaker I] Brisker-style, yes—that is exactly the contradiction in Pnei Yehoshua. Yes, you understand it in two different places. And the Chazon Ish isn’t the same.
[Rabbi Michael Abraham] I’m saying: there is still a contradiction in Pnei Yehoshua. You can say he didn’t notice—fine, that’s possible, it can happen. I wouldn’t stake my life on saying that’s wrong, but you know, that’s not the way we learn. We resolve contradictions. And it seems to me that the only way to resolve this is to rise to yet another failure in Brisker thinking, and that’s its dichotomies. Brisker thinking, when it presents two possibilities, says: it’s either negligence in guarding or that my property caused damage. Right? Maybe it’s both. Maybe it has to be both, the two conditions together. It needs to be property that is mine that caused damage.
[Speaker E] In any case both conditions are needed, I don’t know—both are components.
[Rabbi Michael Abraham] Both? Yes, both together constitute the ground of liability. Right, both together constitute the ground of liability. Now everything works out. Let’s now look at the question of the burden of proof, yes? If we’re talking about burden of proof, and there is a dispute whether I guarded properly or not, on whom does the burden of proof lie? Clearly on the injured party. Why? Because so long as the two conditions have not accumulated together, he has no ground of liability. True, it was my property, but you also need to prove that I was negligent in order to obligate me, because both the negligence and the fact that it was my damaging property together constitute the ground of liability. As long as you haven’t proven both things, the burden of proof is on you, because there is no ground of liability at all. That is the Pnei Yehoshua who says that the burden of proof is on the injured party. Now you ask: what about the liability in the case of one who incites? I set my dog on somebody else. I say: since both things have to be present—what does it mean that both things have to be present? Why specifically do both have to be present? I’ll tell you: because basically what happens here is that once it causes damage, there is a duty of payment on it, yes? And if I was negligent, then the duty is transferred to me. Right? It’s really cumulative, one after the other, but the obligation is created on the dog, and if I was negligent—that’s why you need both conditions. And if I was negligent and it is my property, then the liability is transferred to me. Therefore it works cumulatively. So if that is so, when the dog was incited by… then if there had been liability, they would transfer it to me, but no liability was created because the dog was incited. Therefore Pnei Yehoshua says that I am exempt even when I incite my own dog. Meaning, if I say that both conditions are cumulatively necessary in order to create a ground of liability, then there is no contradiction in Pnei Yehoshua. Each time a different condition is missing. One time the condition on the side of the dog is missing, another time the condition of the person’s negligence is missing. And this, by the way, is the Brisker move of “two laws,” where you say there are two things together—and why do you always say there are two laws? Because in one aspect one will appear and the other will disappear, and in the other aspect the second will appear and the first will disappear, and that is how they often solve contradictions. So one always has to take into account that when we do this kind of conceptual inquiry, setting two possibilities against one another, we should always remember that there is also the possibility that both together are true. Very often we don’t take that into account. It seems to me I spoke about this once. I’ll maybe bring you another example of this. Maimonides, in the ninth root, writes there—he speaks there about repetitions. What happens when the Torah commands the same thing several times? Whether a prohibition or a positive commandment. So Maimonides says: we count one commandment. For example, Maimonides himself brings it: the Torah commands twelve times regarding Sabbath observance. In the enumeration of the commandments, we count only one commandment to observe the Sabbath. Why? Because these are overlapping commands. Why is it done? Maimonides says to strengthen it, to show that it is severe, or something like that, but it doesn’t add another prohibition. We count one thing. In the second part of the ninth root, Maimonides writes that there is such a thing as a general prohibition. A general prohibition—for example, “You shall not eat over the blood.” From “You shall not eat over the blood,” the Sages derive several different prohibitions. One is a warning for the rebellious son, because the rebellious son has only a punishment—”his father and mother shall bring him out” and “the men of his city shall stone him,” and so on—but where is the warning? There is only a punishment. The warning is from “You shall not eat over the blood,” because he ate a certain measure of meat and all the details there. So that is one prohibition. A second prohibition is eating before prayer, which from Maimonides sounds like a Torah prohibition. Interesting. Because he derives it from “You shall not eat over the blood.” He says that is one. Now, in the Talmud, plainly, it’s only an asmachta, but Maimonides brings it as one of the prohibitions derived from “You shall not eat over the blood,” which is a general prohibition, and it seems that according to his view it is a Torah prohibition. And there is also a prohibition on a religious court eating on the day they impose the death penalty. A religious court has to fast on the day they impose death. That too is derived from “You shall not eat over the blood.” Now, besides the fact that one is not punished with lashes for a general prohibition—that is a Talmudic rule, one does not receive lashes for a general prohibition—Maimonides also says that a general prohibition is counted as one prohibition. “You shall not eat over the blood” will be counted as one prohibition even though there are several different prohibitions here, all derived from that verse.
[Speaker E] So about that, Rabbi Yerucham Perla asks, in the introduction to Saadia Gaon’s Book of Commandments. Do you know it? There is a Book of Commandments by Saadia Gaon, which is—
[Rabbi Michael Abraham] —a poem on every commandment. Let’s say, two or three pages, that’s the whole book. It’s this kind of poem on all the commandments. Like Azharot. He also has Azharot, and also a Book of Commandments by Saadia Gaon. Rabbi Yerucham Perla published three volumes like that on Saadia Gaon’s Book of Commandments. That’s really Rabbi Yerucham Perla’s book. As they say about Minchat Chinukh: you took the Chinukh and abused it in order to write a book. He didn’t mean to write something on the Chinukh; he was writing his own book, he just uses the Chinukh as the peg. So Rabbi Yerucham Perla did the same thing, many times over, with Saadia Gaon. In any case, these are three volumes—and by the way, an amazing work. Really an amazing work, a one-of-a-kind composition in all the analytic rabbinic literature. I hardly know of anything like it. It’s unbelievable. Highly recommended—if you don’t know it, it’s really worth studying it, at least looking through it a bit. Yes, three volumes like that, it’s a little hard to go through everything. He has the soul of a researcher. He is a very systematic scholar, really like a researcher, and he’s a lamdan, and he knows—he simply has knowledge that is beyond belief. He sails through the entire Talmud, brings proofs—it’s just an amazing work.
[Speaker J] What does he actually do? What’s the purpose of the book?
[Rabbi Michael Abraham] Like Minchat Chinukh, only around Saadia Gaon’s Book of Commandments rather than around the Chinukh. All kinds of discussions around each commandment. In any case, Rabbi Yerucham Perla at the beginning goes through Maimonides’ roots and discusses every one of them. As far as I know, he is the only one to do this in all of history. The only one who did it. The second was me; I’m soon publishing a book on the roots. But really, he went root by root and discussed not the disputes that arose among the medieval authorities around each root—that was dealt with here and there by later authorities—but rather what the root itself is saying. That is, the foundation of the root itself: whether it is accepted, whether it is not accepted, clarifying exactly what it means. In any case, in the ninth root he says there is a contradiction in Maimonides’ words. Because in the part… in every verse or every command there are really two dimensions. I once spoke about this regarding Rabbi Elchanan Wasserman’s article on repentance. Rabbi Elchanan Wasserman brings there from Ramchal that in every commandment I fulfill there are two aspects: first, I obey the command of the Holy One, blessed be He; and second, I do something positive. Why did the Holy One, blessed be He, command it? Apparently because it brings some spiritual or social benefit, I don’t know, something. Okay? So therefore every commandment-act has two aspects: obedience and repair, let’s call it that. Every transgression also has two aspects: rebellion, yes, rebellion against the command, disobedience; and corruption. Why was it forbidden to us? Because it causes damage. So there are two aspects. Now let’s return to Maimonides. Maimonides in the first part of the root says that if there are several commands that repeat themselves, then they are counted only once, like the twelve times regarding Sabbath observance. Why, asks Rabbi Yerucham Perla? Because apparently we go by the content and not by the commands, right? If the content is one, I don’t care that there are twelve commands. In the second part, what does it say? That a general prohibition is… what is the case of a general prohibition? It is exactly the opposite of the case in the first part, right? Here there are several contents with one command. In the first part there are several commands with the same content; here there are several different contents with one command. And here too Maimonides says you count once. So let Maimonides decide: do we go by the number of commands? Then a general prohibition should count as one prohibition, but in the first part you should count twelve commandments to observe the Sabbath, because you go by the commands. If you go by the content, and therefore in the twelve times of Sabbath observance you count only one commandment, then in a general prohibition too you should count several commandments, because there are several contents—who cares that it is one command? Both and both? Yes, exactly, that is why I’m bringing this. So there is a contradiction here, and he says it requires further study. And “requires further study”—I mean, some thing so simple, every child can see it. Why is that? He was smart, it’s not that he wasn’t smart, but sometimes when we are captive to this dichotomous conception—that it’s either this or that—it simply doesn’t occur to us that there is also the possibility that it’s both together. And in Maimonides this is clear in any case, even apart from this root, it is clear in any case. Maimonides does not count a commandment—we see this in many places—Maimonides does not count a commandment in his enumeration unless it has unique content of its own and a separate command of its own. Both conditions are cumulatively required, exactly like the logic of Pnei Yehoshua. Now there is no contradiction at all. If I am missing commands, but there are several contents with only one command, I will count one, because the condition that there be a command for each thing is not met. If I have several commands with the same content, again I will count one, because the condition that I need separate content for each command is not met. Therefore there is no contradiction in Maimonides’ words, provided that we are willing to get out of the dichotomy. Meaning: it doesn’t have to be either this or that; rather, it is both together cumulatively. Now we can discuss a little why—why do we really have this dichotomous tendency, to see either this or that? Because yes, these still seem to us the simpler possibilities. Let’s say I reached the conclusion that it’s both this and that only after I had a contradiction in Pnei Yehoshua and I needed it in order to resolve it, or a contradiction in Maimonides and I needed to resolve it. The simple way of looking really does seem that way; what naturally suggests itself is indeed either this or that. So the first tendency is to say that there is some principle of simplicity here. We generally prefer the simpler explanation. Right? The famous Rabbi Chaim on the signs of an insane person at the beginning of Chagigah—do you know it? The Talmud there at the beginning of Chagigah says there are three signs of an insane person: that he goes out alone at night, tears his clothes, and sleeps in a cemetery. Okay, so the Talmud says, fine, the fact that he sleeps in a cemetery, the fact that he goes out at night—maybe he is absorbed in thoughts, so you can’t know whether he is insane or not. If he tears his clothes, maybe he is occupied with something else, not focused, thinking about something else. And if he sleeps in a cemetery, then maybe he is looking for some demon or something, I don’t know exactly, something like that. About each one of these there is an explanation, and therefore you need all three signs. So Rabbi Chaim asks: I don’t understand. So each one individually is not a sign because we have a rational explanation for it? Meaning, it doesn’t have to mean that the person is insane. Two also are not enough, because that’s why you need three. So two also aren’t enough, because with two we’ll also say that each one has its explanation. So why with all three can you not say: maybe this one for this reason, maybe this one for that reason, maybe this one because he has obsessive thoughts and this one because he went to meet the demon and this one because he… He says that if I have three cases that I can stitch together with one explanation, or I can offer each one a separate explanation, then clearly I will prefer the one explanation. Think about a forewarned ox. Why after a forewarned ox gores three times is it considered forewarned? I have two possibilities: either to explain that this is an ox whose nature is to gore, right? We talked about that. Or to explain that it’s an accident: three times there was an accident, it had some temporary madness, right? Theoretically that can happen; oxen do sometimes go crazy. But to say three times that each one was a separate accident—that’s strange. Faced with the possibility of saying I have one explanation that sews together all three cases, I prefer the one explanation. Throughout the Talmud there are several cases of a presumption established after three times—something that happens three times already testifies to something essential. Twice may be that these are two cases, but three times already indicates something systematic.
[Speaker E] Okay? There is some crossing of probability here; you had to pass some probability threshold.
[Rabbi Michael Abraham] Let’s say, yes, something like that. But again, probability here is a little dangerous because of the question of the sample space—meaning, how do you assign probability numbers to such cases? So maybe I would call it plausibility more than probability. Meaning, somehow it seems to us that the simpler explanation is also the truer one. Sometimes we call this Occam’s razor. Yes, Occam, William of Ockham—he formulated a somewhat different principle. He said that the theory that posits fewer entities is presumed correct. He wanted to prove the existence of God that way. So he says: if I have a theory that explains everything with one being, then it is preferable to all kinds of theories that give more complex explanations, with all sorts of entities. But today it is customary to call this Occam’s razor—Occam razor, razor, whatever. It is customary to say that basically this is the umbrella name for the idea that we prefer the simpler theory. The simpler the theory, the more we prefer it. So here too one might say that I prefer the theory in which there is only one factor, yes? And not that the two factors together cumulatively are required, because that is a simpler theory. Now, true, if I have evidence that this is not right, then I will adopt a more complex theory. But why is the initial assumption dichotomous? That is probably because the dichotomous assumption is simpler. It’s not entirely unambiguous, because is the theory that two conditions together are the cause really less simple? I’m not completely sure about that. Because notice carefully—and here you have to distinguish between two different logics. I am not saying that each of the two is a cause. If I were saying that each of the two causes can obligate—either there was negligence in guarding or it was my damaging property—meaning either this or that, that would be a more complicated theory, because I have each of two possibilities instead of one possibility. But here I am not saying that. There is one cause that obligates, only that this cause itself is composed of the two sides together. It’s not that I am saying each of the two causes can obligate; there is one cause that obligates. What is that cause? That it is my property and that I was negligent. That is one composite cause. But it is not two causes versus one cause. Now many times in the world there are things that have a composite cause. Why does fire ignite when I use a magnifying glass on paper—when I focus the rays of the sun? Then it ignites. Why does it ignite? Because I concentrated the sun’s energy, right, on that place. If I concentrated it on metal, it wouldn’t ignite; it would not catch fire. The material also has to be flammable, right? Paper. Okay? So there are two conditions together for a fire to emerge: both that I focus the sun’s energy and that the material be flammable. There is no problem with that, because they are two cumulative conditions; it’s not that each one alone can cause this phenomenon, but rather both together. Here, take again the example of presumptions after three times. Let’s say I do an experiment, yes—this is the example I always bring, we’ve already talked about it—I do an experiment, I take this thing, let go of it, and I see that it falls to the ground. Then I also take this thing, let go of it, and I also see it fall to the ground. Fine? So I say: okay, what is common to both? Both have mass, and from here I infer that everything that has mass falls to the earth. Maybe this falls because it’s a book and made of paper, and that falls because it’s made of plastic, or because it’s black. How do you know it’s because they have mass? And I say: because that they have mass is a simpler explanation than saying that either being made of paper or being black can cause falling, because that would be one of two explanations. Okay? So this generalization also says something like the three signs of insanity. One could have said: this one has this explanation and that one has that explanation and that one has another explanation. That’s a more complicated theory. The fact that he goes out at night—I have an explanation because he forgot something; and the fact that he sleeps in a cemetery is because he wants to meet a demon; and the fact that he tears his clothes is because he is absorbed in thought. All of that could be true, but it is much more complex than saying that the man is simply insane. What? Yes, that’s true also for two signs, but the gap apparently has to be significant enough for us to accept it as a legally binding determination. Otherwise we are still in the realm of doubt. By the way, that’s a dispute of Rabbi. So the claim is that the single explanation is simpler than a collection of three alternative explanations. Meaning, that each one by itself would be enough—that is called having three explanations. But what happens? My one explanation also really says that if the man does all three foolish things together, then he is insane. That too is complex, but I need all three foolish things together in order to define him as insane. So isn’t that…? And if you put them together, that is one cause to declare him insane: that he does all three things together. That is a composite cause, but one cause. It is simpler than saying: either if he has this thing then he is insane, or if he has that thing then he is insane, or if he has the third thing then he is insane. Meaning, it counts as one cause; it does not count as three causes. Okay? Even though the cause is composite, like with the fire and the paper. Yes? So the fact that there is one cause here, even if it is composite, is still a simple theory; it is a theory of one cause. So if I return to our question of dichotomy, then why in Brisker conceptual inquiries do we prefer the dichotomous picture? After all, the alternative is to take both together cumulatively, meaning both together as one cause—not each one separately as an option, but both together. And that is one cause. We should have set out three alternatives: either negligence in guarding obligates, or my property that caused damage obligates, or both together obligate. Both together is also one cause that obligates, only a composite cause. Apparently—and I’m trying to analyze why we think this way, I don’t know, I don’t have clear metrics—apparently it is still less simple. A composite explanation is less simple than a simple explanation, even if it is one cause. There is basically a hierarchical order of simplicity that works like this. If you choose either explanation A or explanation B or explanation C, each one being a sufficient condition for the event, that is the most complicated, the most complex. I will prefer that last of all, only if I have no choice. Okay? If you choose that all three together—
[Speaker E] —will do—
[Rabbi Michael Abraham] —the job, that is complex, but less complex than either this or this or this, because that is only one cause. True, it is composite, but still only one cause. If you find that only one of them is responsible, and the others exempt and do not participate in the liability itself, that is the simplest. And maybe that is why we really work in this order. We begin with a dichotomous picture, and then if we have no choice we connect the two things, and if even that doesn’t work, then maybe we really will adopt the theory that either negligence in guarding obligates or my property caused damage obligates. It could be that even that either-or, if we have no choice, will become the theory we adopt. Everything depends on whether it passes the factual test—yes?—whether it explains the relevant laws or does not explain the relevant laws. And that is exactly the same move as scientific elimination. I have facts that I observe, and I look for the scientific theory that explains them, like with things falling to the earth. There too, at the first stage I will prefer the simple explanation that every body with mass falls to the earth; that is one explanation that explains all the cases. But if suddenly I discover that there is a body with mass that does not fall to the earth, I have to retreat, right? So that means it is not true that every body with mass falls to the earth. Then what will I do? Then I need to adopt some explanation like either things made of paper or black things. I have no choice, even though it is a much more complicated explanation. But facts are facts. I cannot impose my simplicity on the facts.
[Speaker I] Or you can do something else—you can say this specific thing has—
[Rabbi Michael Abraham] —it may have—if so, then that may already be—there may be an intermediate level of simplicity. If I find—yes, yes, of course. I’m not getting into all the options. I’m only trying to show that facts can force us to adopt more complex theories. And as I once heard in some lecture by a well-known outreach rabbi, he said once that there was some physicist who proved that Occam’s razor isn’t true, I think, because look: in electromagnetic theory we use both an electric field and a magnetic field. Meaning, we use two elements and don’t assume there is only one. And I saw that claim, and it is simply nonsense. Occam’s razor helps me choose among theories that fit the facts. Among all the theories that fit the facts, I choose the simplest one. But if no simple theory fits the facts, then of course I accept the more complicated theory. Quantum theory is not the simplest theory one could imagine; it seems to me that even someone who doesn’t know it can agree with that statement. Why do I adopt it? Because that’s what passes the test. The factual test. What can I do? The simple theories don’t work. Occam’s razor is a methodological principle, and it tells me: among the possible theories, the ones that fit the facts, choose the simplest. But if none of the simple theories passes the factual test, then I have to adopt complex theories. And if I apply that to what we said earlier, then let’s say this: when we approach a Brisker conceptual inquiry, first of all we will try to find that one side is decisive and the other perhaps is only a ground for exemption. Yes? If that doesn’t work, then we’ll say: fine, both together, as with Pnei Yehoshua. We’ll say both together constitute one composite cause. And if even that doesn’t work, then we have to say: fine, then maybe this alone works and that alone works. Okay? Maybe negligence in guarding alone obligates me even if it is not my property. And by the way, there are such theories in tort law as well. For example, one who places another person’s animal on another person’s standing grain—if someone says that this is not direct human damage but rather damage by property, then why? After all, it isn’t mine. Yes, but I was negligent in guarding. I was negligent in guarding without it being mine, though it’s sort of mine. Never mind, somehow you have to get a bit of “mine” into it, but it’s not really mine and still I am liable. And also if something is mine but maybe I wasn’t completely negligent—not that I incited it, but just opened the door, for example—then I am also liable. Okay, so there is also room for the most complex theory, the third level, if the facts really compel us to accept it. Therefore one has to be careful not to become captive to Occam’s razor. Occam’s razor is a methodological principle that helps me choose among theories that all explain the facts. But you can’t use Occam’s razor to prove that a simple theory is correct if it doesn’t explain the facts. It doesn’t help that it’s simple. It’s very simple, but it doesn’t explain the facts, so it isn’t a theory.
[Speaker C] Yes, exactly.
[Rabbi Michael Abraham] Okay, therefore in the next lesson I’ll try to show this a bit from the sources. Shalom. Okay.