Topics in Talmudic Logic, Lecture 9
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Table of Contents
- Conceptual construction versus the common denominator
- Symmetry, “dayyo,” and the distinction between a derivative and a common denominator
- Opening the discussion in Shevuot: grapes attached to the ground and an oath
- The explanations of the medieval authorities (Rishonim) and Ri Migash about the difference between guarding and buying and selling
- Criticism by later authorities of Ri Migash and its implications for the type of oath in the Mishnah
- Maimonides: the Commentary on the Mishnah versus the legal ruling, and the entanglement of contexts
- A proposed solution: the liability of the watchman’s oath by virtue of “defensiveness” learned from partial admission
- Conceptual construction or common denominator: “the oath of a defensive watchman” versus “the oath of the defensive defendant”
Summary
General Overview
The text draws a distinction between a mode of learning based on a common denominator and a mode based on conceptual construction, and demonstrates how conceptual construction creates a third concept out of a fusion of the unique components of two source cases. It suggests an indication that conceptual construction tends to be non-symmetrical, and applies these tools to a discussion in tractate Shevuot about grapes ready to be harvested, biblical oaths, and the dispute between Rabbi Meir and the Sages. It then tries to solve an interpretive tangle in Ri Migash, in Maimonides, and in the Raavad’s glosses regarding the watchmen’s oath and the oath of partial admission, and finally proposes two directions: to see the solution as a conceptual construction that creates “the oath of a defensive watchman,” or to see the three biblical oaths as applications of one common denominator, “the oath of the defensive defendant,” linking this to the idea that “the scriptural sections are intermingled here.”
Conceptual Construction versus the Common Denominator
The text argues that a Festival that falls on the Sabbath and Yom Kippur that falls on the Sabbath are not a “neighborhood composite” but a fusion that creates a third concept, and it defines this as conceptual construction. It formulates that the logic of the common denominator strips the source cases of their unique features and bases the law on the shared parameter, whereas in conceptual construction one specifically joins the different and unique components of the two source cases in order to create a third concept that can bear the same halakhic property. It illustrates this with spitting in the public domain as a fusion of winnowing with carrying four cubits in the public domain from throwing, so that “spitting” is carrying four cubits in the public domain by means of the wind.
Symmetry, “Dayyo,” and the Distinction Between a Derivative and a Common Denominator
The text presents that one indication for distinguishing between a common denominator and conceptual construction is the question of symmetry, and emphasizes that in a common denominator one would expect a symmetrical relation in which everything found in the two source cases passes over to the derivative, and the derivative has no “extra element.” It brings the case in Bava Kamma of one’s stone, knife, and load that fell from a rooftop as an example where it was claimed by the Rosh that there would also be an exemption for concealed items if the derivation is from fire and pit by way of a common denominator. It suggests that when one gets a result that does not fit the symmetry that would be required, this points to conceptual construction, in which one of the source cases serves to remove an obstacle rather than functioning as an equal-status component in the derivative. In the case of one’s stone, knife, and load, he explains that the liability is “they have all the law of a pit,” and fire only teaches that the involvement of wind does not interfere.
Opening the Discussion in Shevuot: Grapes Attached to the Ground and an Oath
The text moves to the first Mishnah in tractate Shevuot, where Rabbi Meir obligates an oath in the claim “I entrusted you with ten laden vines,” and the defendant admits only five, while the Sages exempt him because “anything attached to the ground is like the ground.” It lays out the background of the three oaths in the Torah: the oath of partial admission, the watchmen’s oath, and the oath triggered by one witness, and emphasizes the rule that one does not swear concerning land but only concerning movable property. It cites the Gemara’s explanation that the dispute concerns grapes ready to be harvested, where according to Rabbi Meir “they are considered as though harvested” and according to the Rabbis “they are not considered as though harvested,” and it raises the difficulty that other passages treat something ready to be harvested as detached in an agreed and uncontroversial way.
The Explanations of the Medieval Authorities and Ri Migash About the Difference Between Guarding and Buying and Selling
The text describes how medieval authorities propose technical distinctions among different degrees of ripeness in order to resolve the contradiction between the passages, such as distinguishing whether the produce still “benefits from” the ground or whether it has already reached the point where “it no longer shrivels and worsens,” and the like. It presents the view of Ri Migash, who states that specifically regarding a watchman, grapes ready to be harvested are not considered as though harvested, because they were entrusted for guarding while attached, and the intent is that they not be plucked. But in buying and selling, when they were sold for the purpose of being plucked, “since they have already reached the stage of harvest, they are considered harvested,” and they are treated as movable property for matters such as overreaching and oaths. It formulates Ri Migash’s line as a distinction between the context of entrusting for guarding and the context of sale for detachment.
Criticism by Later Authorities of Ri Migash and Its Implications for the Type of Oath in the Mishnah
The text presents two main difficulties raised by later authorities against the possibility of explaining the Mishnah as dealing with the watchmen’s oath: first, that the Mishnah chooses a case of partial admission even though the watchmen’s oath does not depend on partial admission; and second, that the watchmen’s oath is irrelevant when the defendant denies the very existence of a guarding contract. It adds that the case of partial admission creates a severe problem for the watchmen’s oath, because regarding the denied part there is no admission that there ever was a guarding contract. It cites Maimonides in the laws of rental, who rules that when the defendant claims “I did not become his watchman” or “nothing of the kind ever happened,” he swears only a rabbinic oath of inducement and not the watchmen’s oath. It also presents the difficulty from the direction of the partial-admission oath based on the rule of “here it is,” since according to the Talmud land is always considered “here it is,” and therefore seemingly there can be no oath of partial admission when the admission concerns something attached to the ground.
Maimonides: The Commentary on the Mishnah versus the Legal Ruling, and the Entanglement of Contexts
The text notes that Maimonides in his Commentary on the Mishnah follows Ri Migash and formulates the distinction, “and specifically if he entrusted them to him as an act of guarding,” but adds that for buying and selling, overreaching laws, and partial admission, they are treated as movable property. It points out that in Maimonides’ legal ruling in the laws of rental he writes, “one who entrusts his fellow with something attached to the ground for guarding… they are like land in the laws of watchmen,” without depicting a case of partial admission; while in the laws of claims and counterclaims he writes that if one claimed grapes ready to be harvested “and he admitted part of them,” he swears like in the case of other movable property on condition that “they do not need the ground.” It cites the Raavad’s gloss, “our colleague rules like Rabbi Meir,” as a reaction to reading Maimonides as obligating an oath where the law follows the Sages, and emphasizes that the Raavad leaves the matter unresolved.
A Proposed Solution: The Liability of the Watchmen’s Oath by Virtue of “Defensiveness” Learned from Partial Admission
The text proposes a move in which the case of partial admission does not come to obligate an actual oath of partial admission, because of the rule of “here it is,” but rather to create a situation of a defendant who is “defensive” even regarding the portion he denies. It explains that partial admission teaches that a partial confession creates some basis for the claim and puts the defendant in a defensive posture even with respect to the denied portion, and that the watchmen’s oath applies to a watchman who is in a defensive posture when he seeks to exempt himself. It argues that in the case of “ten vines” and “you entrusted me with five,” a watchmen’s oath arises regarding the rest because the admission concerning part of the claim moves the defendant into the status of a defensive watchman even with respect to the part about which he says, “nothing of the kind ever happened,” and in this way the difficulty is resolved of how the watchmen’s oath can apply when he denies part of the entrustment. It adds that the rule of “here it is” removes the oath of partial admission but does not remove the watchmen’s oath, and therefore “what remains” is the liability of the watchmen’s oath.
Conceptual Construction or Common Denominator: “The Oath of a Defensive Watchman” versus “The Oath of the Defensive Defendant”
The text suggests interpreting the move as a conceptual construction in which one fuses the feature of defensiveness from partial admission with the framework of the watchman and creates a third concept, “the oath of the defensive watchman,” which is neither the regular watchmen’s oath nor the regular oath of partial admission. It proposes an alternative of a common denominator, according to which the three biblical oaths—the oath of one witness, the oath of partial admission, and the watchmen’s oath—are all manifestations of “the oath of the defensive parties,” that is, an oath obligation in a situation where the defendant should ordinarily win under the rule “the burden of proof is on the claimant,” but the claimant has some monetary foothold. As support, it raises the idea that “the scriptural sections are intermingled here,” where the verse “of which he shall say, ‘this is it’” of partial admission appears within the section dealing with watchmen, and suggests that this hints that the oaths are not separate sections but rather expressions of one idea. It concludes that the direction of a common denominator is a major innovation because it may, in principle, expand the scope of a biblical oath to every defensive defendant, and it sees the discussion as a laboratory that dissolves interpretive difficulties once one identifies the underlying logical structure.
Full Transcript
[Rabbi Michael Abraham] Last time I presented a mechanism, or a kind of halakhic inference, that on the face of it looks like a common denominator—there it is, I saw you—that on the face of it looks like a common denominator, but it isn’t a common denominator. It isn’t a common denominator, but rather a conceptual construction. I brought examples of this from the laws of the Sabbath and from tort law, examples that overall are very similar. Meaning, in both of those cases, the second source case is some kind of support that comes to show that the involvement of wind should not interfere with liability—whether liability in torts or liability in the categories of Sabbath labor. But in the end we saw: a Festival that falls on the Sabbath, an etrog that passes over— a Festival that falls on the Sabbath, a High Priest versus an ordinary priest, a ritually pure person who rejoices over the additional offerings of the Sabbath on Yom Kippur that falls on the Sabbath, which are also brought by the High Priest—Maimonides’ position—that they’re brought by the High Priest; and the claim was that a Festival that falls on the Sabbath, or Yom Kippur that falls on the Sabbath, is not a composite of those two things, not a neighborhood-style composite, as I called it, but rather a fusion of those two things and the creation of a new concept, a third concept. And that, basically, is the meaning of conceptual construction. And I said that really the logic of conceptual construction is a logic—just to remind you—the reverse of the logic of the common denominator. If in both cases we have two source cases, A and B, and then the derivative or learned case C: this one has Z and that one has Z. This one has X and not Y, and that one has Y and not X. This one has neither X nor Y. So the common denominator says: X and Y are irrelevant, because after all the law—let’s call it law P—exists both here and here. So it doesn’t depend on X, because you see that even without X it exists. It doesn’t depend on Y, because you see that even without Y it exists. Therefore it doesn’t bother me that here there is neither X nor Y. So what does it depend on? On the common denominator, on Z, which is shared by both source cases. Therefore law P applies to anything that has Z. And if that’s so, then here too, even though there is neither X nor Y, that doesn’t bother me; I performed an elimination. The determining parameter is basically parameter Z. So that’s the common denominator. The common denominator means stripping the two source cases of their unique features. In contrast, conceptual construction says that I have here B and A; here I have X and Y, and here I have the opposite. Now I connect this—let’s call it that—I connect it and I create from it C, where C is basically, let’s say, something with X and Y, or something like X-bar Y-bar, depending on the context. Meaning, you specifically take what is unique to this one and absent there, and what is unique to that one and absent here, take those two unique parts, fuse them together, and create from them a third concept. That’s like the example we saw of spitting in the public domain, where I took the involvement of the wind together with winnowing, which is the feature unique to winnowing and absent in throwing. The feature unique to throwing and absent in winnowing is that in essence it is carrying four cubits in the public domain. Now I connect the two and say: carrying four cubits in the public domain by means of the wind—that is the fusion of those two things; that is basically spitting. So spitting is some kind of fusion of two concepts, where specifically the different parts of the two concepts are what get connected. If there I threw away P, basically it depends on Z, on the common denominator of the two source cases, here P depends specifically on X and Y, on the different things. I connect what distinguishes this with what distinguishes that, create from them a third concept, and claim that this thing too can have property P. We talked about the fact that one of the implications—though not a necessary one—but one of the implications of conceptual construction is that unlike the common denominator, where I would expect the learned case to have nothing beyond what exists in the two source cases, a kind of “dayyo,” yes, there can’t be in the learned case anything beyond what we found in the two source cases. Therefore, for example, in the case of one’s stone, knife, and load that fell from the rooftop in Bava Kamma 2a, they learn it from fire and pit, and therefore the claim of the first view in the Rosh was that there is also an exemption for concealed items. The common denominator of the two of them, yes, their intersection.
[Speaker B] Or method.
[Rabbi Michael Abraham] In contrast, in the case of… in the case of… actually, it’s not correct to say “intersection” here—combination. Combination, meaning you need both together. It’s also—it’s not an intersection, it’s not exactly the same thing. So there, there has to be a relation between the derivative and the two source cases; it has to be a symmetrical relation. Everything present in the two source cases passes over to the derivative. There can’t be in the derivative something beyond what exists in the two source cases. If one of them has something special that the other one does not have, the derivative won’t have that, and vice versa. Right? Exactly according to that logic, it has to come out that way necessarily. Okay. But in the Rosh we saw there that the Rosh says, “they have all the law of a pit,” and they are exempt for vessels but liable for concealed items. How can that be? After all, with respect to concealed items, fire is not liable, and in order to derive the derivative you need both fire and pit together. You don’t have fire—yet it tells you “liable for concealed items”; fire is not liable for concealed items. So how can that be? So I said we have to say that this is conceptual construction and not a common denominator. Conceptual construction, in that case, means that really one’s stone, knife, and load that caused damage after they came to rest in the public domain—what damaged there—is basically a pit. The only thing that bothered me was just that there was involvement of the wind. So winnowing serves as proof that the involvement of the wind does not interfere. Once I learned that, I go back and I see that in one’s stone, knife, and load, this is a pit. The fact that the wind does not interfere with liability in fire—and therefore there is there an exemption for concealed items—the exemption for concealed items is not because of the involvement of the wind. The exemption for concealed items is because in fire one is exempt for concealed items. But in that same liability that exists in fire, meaning all the things that are not concealed, it is not disturbed by the fact that the wind is involved. So if that’s the case, then in pit, where they are liable for concealed items and exempt for vessels, the involvement of the wind will not bother me either. I do not need an exemption for concealed items according to that logic, okay? Because it is not really a derivative of fire and pit; it is a derivative only of pit. Fire just tells me: don’t worry that the derivative of pit is not completely similar to the primary category—to pit—because wind is involved. That’s okay; in fire we see that this doesn’t interfere.
[Speaker B] If so, then it’s not a common denominator.
[Rabbi Michael Abraham] What? Exactly. So it isn’t a common denominator. On the contrary, it’s the common difference. There is no common denominator at all between winnowing and throwing. None. There is no common denominator between the two—look all you want, you won’t find one. There is no common denominator between winnowing and throwing. There are only different aspects. On the contrary, we take the different aspects of both and fuse them, and that’s what gives me spitting. Spitting is basically the fusion of the different aspects of winnowing and throwing together. So I said that one of the features that distinguishes conceptual construction from the common denominator—an indication, not a necessity, an indication—is that it is not symmetrical. Meaning, if in the derivative there are not the two features of the two primary categories, that is an indication that this is not a common denominator. Okay? Alternatively, let’s put it this way: if it were a common denominator, it would have to be symmetrical. If it’s not symmetrical, then it’s not a common denominator. But that doesn’t mean that if it is conceptual construction then it must necessarily be non-symmetrical. That direction is not necessary. If it isn’t symmetrical, then it must be conceptual construction and not a common denominator. But if it is conceptual construction, that does not necessarily mean it won’t be symmetrical. If the fusion is a fusion that has equal status with the components on both sides, it may be symmetrical. In the case of spitting and of one’s stone, knife, and load that fell from the rooftop and caused damage, indeed the combination of the two source cases is not symmetrical. One of them is only a crutch; it only says, “don’t worry about the fact that wind interferes,” but basically the derivative is only a derivative of throwing, or of pit in the tort case. Okay? The second primary category only comes to remove some obstacle. It does not really have the same status as the central primary category. That’s why the Rosh says, “they have all the law of a pit”; that’s the principle. Okay. And then at the end I talked about whether there could be a case in which there would be symmetrical status for… did I talk about that? I don’t remember anymore. Whether there could be symmetrical status even in conceptual construction. Can it be that even in conceptual construction the two source cases, the two primary categories, would have a symmetrical appearance in the derivative? Today let’s see an example about which I’m a bit undecided. I’m even undecided whether it’s conceptual construction or a common denominator—we’ll see in a moment—but it’s an interesting example, I think, and also a nice demonstration of this point: that when you try to understand the logical infrastructure of the mode of thinking, then you can discover gems. Meaning, you can discover that many of the difficulties raised by the commentators, with which they are really at a loss, simply disappear on their own. Meaning, there’s no difficulty at all. Today we’ll see an example of such a discussion. It’s a discussion in tractate Shevuot, in tractate Bava Batra—tractate Shevuot mainly—about the watchmen’s oath, the oath of partial admission. So let’s… what? Pages? Yes, I hope there are enough. In the meantime, sit one to a table, okay? Not one by one.
[Speaker D] No problem. Can I ask a question? Let’s say if there’s an advantage to moving from X to Y so that the same law applies here, why after you see that it has X do you need to clarify something further, that it should have the same law also with Y and with Y-bar? Maybe X alone is enough.
[Rabbi Michael Abraham] No, that’s why I’m saying this scheme is a very general one. In most of the examples we saw, it’s not exactly X and Y. X and Y—Y is the involvement of wind. The involvement of wind is something that could have exempted, not obligated. So I say: since it is like throwing, I don’t care that there is involvement of wind here—it won’t interfere—even in such a case he will be liable. It’s not that together with the involvement of the wind I need it in order to obligate—you understand? So it would have been more accurate to call it Y-bar, and then I would mark this one as Y and this one as Y-bar, so that it would nevertheless still be a combination of the two source cases. That’s only in order to show the scheme, it’s not… Okay, so I want to deal with a discussion that later authorities, again, really tear their hair out over, and it’s very interesting because I think this logic really dissolves all the difficulties. Meaning—so let’s see. There is a Mishnah in tractate Shevuot, the first Mishnah on your page. The page is double-sided, so on the first side, source 1. The Mishnah says as follows: Rabbi Meir says, “There are things that are like land, that are in the land and yet are not like land, and the Sages do not agree with him. How so? ‘I entrusted you with ten laden vines,’ and the other says, ‘There were only five’—Rabbi Meir obligates an oath, and the Sages say: ‘Anything attached to the ground is like the ground.’” Meaning, we are speaking here about a watchman with whom ten laden vines were deposited; deposited with him, of course the vines are in the ground, they weren’t deposited physically with him—rather he was entrusted with the vines, not that the vines were deposited by him. They said to him: guard my vines for me, I’m going now to Australia, in the meantime watch the vines for me. Then I return from Australia and say to him: my friend, where are my ten vines? And he says to me: you only gave me five. No—ten laden vines, meaning they had fruit on them. Right? You entrusted only five. Rabbi Meir obligates an oath. Which oath? The watchmen’s oath? Partial admission? There’s room to hesitate, right? And the Sages say: anything attached to the ground is like the ground. The rule is—and let me give an introduction before we return to the Mishnah. An introduction. There are three kinds of oaths in the Torah: the biblical oath, the Mishnah oath, and the Gemara oath. The biblical oath means oaths of biblical origin. The Mishnah oaths are listed at the beginning of chapter 7 of tractate Shevuot; most of them are listed there. And the Gemara oath is the oath of inducement, which it is commonly assumed was instituted by Rav Nahman—or whatever, in the Talmudic period. Later authorities already point out that one can even see hints of this oath in the Mishnah, but that doesn’t matter—that’s what it is usually called. It is also a rabbinic oath and is lighter than all the others, a different topic. What interests us are the biblical oaths. There are three biblical oaths. The oath of partial admission: if someone claims from me a maneh and I admit half or a quarter, part of the maneh, then I need to swear about the rest, about what I deny. Right? If, say, I tell him I owe you half, I owe you a quarter, then I need to swear about the remaining three quarters that I don’t owe him, that I do not owe him more than a quarter. About that I need to swear. That is the oath of partial admission. The watchmen’s oath is when someone deposited an object with a watchman for safekeeping, and the watchman claims that it was stolen or that some unavoidable accident happened in a way that exempts him—meaning an unpaid watchman can claim theft, a paid watchman can claim an unavoidable accident and is exempt for that—then in order to exempt himself he must swear. That is called the watchmen’s oath; it too is explicit in the Torah—the watchmen’s oath and the oath of partial admission. The third oath is the oath based on one witness. If there are two witnesses against me, they extract money from me. If there is one witness against me—I win the case; they do not extract the money from me, but I must swear. Okay? Those are the three oaths that appear in the Torah. There is another rule. And the rule is—I’ll call this just background so we know what we are discussing—the rule is that one does not swear concerning land. Meaning, when the litigation or dispute between plaintiff and defendant is about land, there is no oath about it. Oaths are only about movable property. Never mind—they derive this from a generalization, specification, and generalization, that about such a thing one does not swear. We won’t get into now why, and whether there are explanations, and what those explanations are, and so on. I return to the Mishnah. So in our Mishnah, Rabbi Meir and the Rabbis are dealing with the question: what are those things that can be considered land for the purpose of saying that one does not swear about them? If it is land, one does not swear about it, because one does not swear about land. So here is the example. Rabbi Meir gives an example of things that are apparently in the ground—not apparently, they are in the ground—but they are not like land. They are in the ground, but they are not like land with respect to the obligation of an oath. Meaning, one does swear about grapes attached to the vine. That is not considered land for the laws of oaths. Okay? And then what is the case? He says to him, “I entrusted you with ten vines,” and he admits only five—“there were only five”—partial admission, so he is obligated to swear, says Rabbi Meir. Why? After all, here he is swearing about vines; vines are land. Because it is not land. These are vines attached to… sorry, grapes. The grapes attached to the vine-trees are not considered land; the trees are, but the grapes, the fruits, are not. Okay? The Sages disagree with him.
[Speaker C] What? That according to the Sages an oath doesn’t apply. Right.
[Rabbi Michael Abraham] That’s Rabbi Meir. The Sages say: anything attached to the ground is like the ground. It’s not only in the ground, it is also like the ground. Meaning, anything that is in the ground is also like the ground—like land with respect to the laws of oaths. Okay? Seemingly the dispute between Rabbi Meir and the Sages appears in the Gemara there. Look at source 2 on your page. Rabbi Yosei son of Rabbi Hanina said: “Here they disagree about grapes ready to be harvested. Rabbi Meir holds they are considered harvested, and the Rabbis hold they are not considered harvested.” And the trees are still attached, yes. Meaning, we are talking about grapes ready to be harvested, that is, ripe grapes. They have already completed their growth; they are ready to be harvested. Rabbi Meir argues that if they are ready to be harvested, they are no longer considered land; they are basically fruit, they have some independent status. This is called: anything that stands ready to be harvested is considered harvested. But whether that is a sign or a cause—that one could debate analytically; we won’t get into that now. And the Sages say no: as long as it’s attached, it’s attached. I don’t care that it is already ripe. Okay? So the question is: things—grapes ready to be harvested—what is their status? Like land, or like movable property? Now there are parallel passages in several places—in Sanhedrin, in Gittin, and elsewhere—where one sees quite clearly that things like grapes ready to be harvested, or figs ready to be gathered, or all sorts of things of this kind, are considered detached. And this is brought as an accepted ruling. Meaning, there is no… also with a Nazirite, the hair of a Nazirite and fingernails and all kinds of things like that—never mind, there are many examples. Things that are ready to be shorn, or gathered, or harvested—meaning ready to be severed from their source of life—are already considered detached. They are not considered attached. Therefore the medieval authorities note here: so why does this tannaitic dispute appear only here? Why, in all the other passages that deal with the question whether things ready to be harvested are considered harvested or not, do they not say that this really depends on the dispute between Rabbi Meir and the Sages? More than that: with Rabbi Meir and the Sages, the law follows the Sages.
[Speaker E] And the Sages say they are not considered harvested.
[Rabbi Michael Abraham] They are land, and one does not swear about them. So it’s not only that they don’t mention that this is a tannaitic dispute—it contradicts the law. Here we rule like the Sages, and in the other passages it appears as a simple matter that something ready to be harvested is considered harvested. Fine. So the medieval authorities make all sorts of distinctions here. Some want to distinguish between different levels of ripeness. If something is already sufficiently ripe but still draws a bit from the ground, still has something to gain from the ground—then Rabbi Meir and the Sages disagree about that. But if something is already fully ripe, maybe even… this is called “it does not shrivel and worsen,” rather… meaning if it remains on the tree it will actually be harmed by it—I no longer remember the expression—then there, according to everyone, and that’s what the other passages are dealing with, which say that this thing is certainly detached—about that there is no disagreement. The disagreement here is over what happens if it still isn’t harmful for it. Some say the disagreement here is whether it is still beneficial to it, while the other passages speak of when it is not beneficial, not necessarily when it is harmful. So there are all sorts of debates among the medieval authorities who create different gradations of ripeness of the grapes. They make technical distinctions. But there is another approach—this is the approach of Ri Migash. Look at source 3 on your page. “Rabbi Meir says: there are things that are like land and yet are not like land,” etc. “And we established that this is with grapes ready to be harvested: Rabbi Meir holds they are considered harvested and therefore one swears about them, while the Rabbis hold they are not considered harvested, and therefore they are like land and one is exempt. And the law follows the Rabbis, for we maintain that when there is an individual against the many, the law follows the many. And specifically regarding a watchman do we say that grapes ready to be harvested are not considered harvested, because since they were given to him for guarding while attached to the ground, they are like land, since they were not given to him in order that he pluck them. But one who sells his fellow grapes while attached to the ground, for him to pluck them for himself—since they were sold to him in order that he pluck them, once they have reached the point of harvesting they are considered harvested, and we judge them as movable property in every matter, such as the law of overreaching and an oath and the like, for we maintain that anything ready to be harvested is considered harvested, and anything ready to be fenced in is considered fenced in. And if they still need the ground and have not yet reached harvest, that is already another story.” What is he saying? He is saying that in our Mishnah, the distinction between our Mishnah and—he too, basically, his motivation for making this distinction is the difficulty posed by the other passages. He doesn’t present it as a question and answer, but first says the distinction, and then says: and through this it will become clear why there is no contradiction to the other passages. Meaning, that was his motivation; it’s the same motivation as the other medieval authorities. And then he says like this: our passage deals with the laws of watchmen. In the laws of watchmen, when you entrust grapes to a watchman, you are really giving him these vines not so that he should pluck them—on the contrary, his job is to guard them so that no one will pluck them, so that they won’t be stolen from you, or so that they won’t be damaged—that is, that they won’t be plucked. That is his job. In such a case, Rabbi Meir and the Sages disagree whether we still treat the grapes as harvested grapes, because right now at least they are not standing to be harvested; they are ripe, but as long as they are under the control of the watchman, his job is to make sure they are not harvested. Therefore at this stage they are not considered harvested. The parallel passages, which treat grapes ready to be harvested as harvested, are passages about commerce. For example, if I give you a vine and say: pick yourself a kilo of grapes; you paid me ten shekels, pick that kilo and take it—that’s a case where the grapes are standing to be harvested, because for that purpose they were transferred. In such a case, even before the person harvests the grapes, we treat them as harvested. So says Ri Migash. That is how he resolves the contradiction between the other passages—Gittin, Sanhedrin, and so on—and the passage here. The passage here deals with the laws of watchmen, while the passages there deal with claims and counterclaims in general and with other contexts. The later authorities discuss Ri Migash’s claim and say that it cannot be. You cannot say such a thing. Why? Basically Ri Migash argues that we are speaking here about the laws of watchmen—this also seems to fit the Mishnah—but that cannot be, for two reasons. First reason: why was the case set up as one of partial admission? It should have said: “I entrusted you with ten laden vines,” he denies, let him swear the watchmen’s oath. Why do we need the partial admission? After all, watchmen do not require admission. There is a dispute in the Gemara about this—Rami bar Hama—whether watchmen require partial admission or not, though it’s not exactly the same issue. But in practical law, in any case, we do not rule that way. The watchmen’s oath does not require partial admission. A watchman who denies everything must also swear. If he says, “It all burned,” or something like that, he also has to swear. So it is unclear why the Mishnah frames this as: I entrusted you with ten vines and you admit only five. Why? Why do we need to get to that? I entrusted ten, you don’t agree—let him swear the watchmen’s oath. If it is land, then not; if not land, then yes—the dispute is whether this is land or not. But why does the case have to be depicted as one of partial admission? That is evidence that this is talking about the oath of partial admission, not the watchmen’s oath. Second difficulty: how is the watchmen’s oath even relevant here in such a case? It’s utterly absurd. Let’s think it through. Leave aside the case of partial admission; let’s speak about all the vines. Someone comes and says, “I entrusted you with ten laden vines,” and I say, “What are you talking about? You never entrusted me with anything.” Is there a watchmen’s oath in such a case? Obviously not. The watchmen’s oath is part of the contractual law of guarding. When there is a guarding contract between us—I entrusted you with a cow and the cow died, and you claim it happened under unavoidable circumstances; let’s say you’re a paid watchman, and you claim it was an unavoidable accident and therefore you are exempt—the guarding contract requires that in order to exempt yourself, you must swear to me. But if you do not agree that there was a contract, if you say, “Nothing of the sort ever happened”—I just abused somebody, grabbed a random person in the street with no proof, no indication, and said to him: tell me, where’s the cow I entrusted to you? He’ll say to me: what do you want from my life? I don’t know you at all. Will he swear the watchmen’s oath? Never. And if I say to him: you owe me money, no matter on what basis, he is exempt from an oath—complete denial. Why is a watchman liable? Because a watchman is not simply a complete denier; he doesn’t say “nothing ever happened.” The watchman says: you’re right, there was a guarding contract; it burned. The cow died, the grapes burned, I don’t know, something happened. About that, you understand there was a guarding contract. Within that contract, if you want to exempt yourself, you have to swear. The contract obligates you to swear. But if you deny the very existence of a contract? “I don’t know you. What guarding contract? What are you talking about?” How can you make me swear? I am denying everything. A complete denier is exempt from an oath.
[Speaker E] What is “complete denial”? What?
[Rabbi Michael Abraham] No, no, before the five. No, no, I’m talking now about complete denial. Complete denial: I claimed ten from you, okay? And you said, “Nothing of the kind ever happened, there was never any such thing, you never entrusted me with anything at all.” Obviously there is no watchmen’s oath, right? Now let’s see the case in the Mishnah. The Mishnah is talking about a partial-admission setup—not an oath on a partial-admission setup, but a watchmen’s oath in a partial-admission setup. What does that mean? I entrusted you with ten vines and you admit only five.
[Speaker C] About what are you swearing?
[Rabbi Michael Abraham] About the other five. But regarding those other five, you are saying they were never given to you—not that you are saying they burned. There was no contract about them. What difference does it make? What did you gain by making it partial admission? After all, the part on which you are swearing is a part about which you do not admit at all that there was ever a guarding contract. If you do not admit that there was a guarding contract, then as far as the laws of watchmen are concerned it is like complete denial. Leave aside partial admission—as far as the laws of watchmen are concerned. How can the watchmen’s oath apply here? The watchmen’s oath only applies where it is known that you are a watchman, and you make a claim that comes to exempt you; in order to exempt yourself you need to swear. But here you are saying: I wasn’t watchman over these five. You only entrusted me with five. If this were the oath of partial admission, I understand; there’s no problem with the oath of partial admission—that’s the whole idea of the oath of partial admission: if you admit part, swear to me about the rest. But if Ri Migash argues that this is the watchmen’s oath, what does that have to do with anything? What do you have to swear about something regarding which you do not admit that you were even a watchman at all? The watchmen’s oath is only where you claim that it was under unavoidable circumstances, where you make a claim that exempts you from liability—not where you said there was no contract. There was a contract; within the framework of the contract I am entitled to be exempt. Fine. But that framework also obligates you to swear in order to exempt yourself—so swear. But if you do not agree that there was any contract on this at all, how can one make you swear? It’s completely ridiculous. You can’t say this is the watchmen’s oath. So these are the two main questions that a number of later authorities raise. The Shakh, the Tosafot Yom Tov, Rabbi Akiva Eiger, various later authorities. They say: this Ri Migash cannot be right. Look for example at Maimonides, chapter 2 of the laws of rental—you see it there, after Ri Migash. “If one claimed that he deposited something with him and the other said, ‘I only told him: place it before you, and I did not become his watchman,’ he swears an oath of inducement that he accepted it only in that manner, and he includes in his oath that he did not misappropriate it.” They already roll into it also an oath that he did not misappropriate it. But this is not the watchmen’s oath; this is the Gemara’s oath, the oath of inducement. There is no watchmen’s oath in such a case. Why not? Because I did not accept responsibility for guarding it. I only told you, put it here, I’ll keep an eye on it, but I’m not accepting liability—that’s not a guarding contract. By the way, these are real-life cases. Someone tells you: keep an eye on this for me. Do you become a watchman? An unpaid watchman? Are you liable for negligence? Are you liable… ? Of course not. If you did not enter into a guarding contract, you do not even become an unpaid watchman. You did him a favor, you kept an eye on it; you bear no liability if something happens. For liability you need to make a guarding contract. Okay? Maimonides says there is no such contract here. And therefore the same with halakhah 12: “If one says, ‘I lent it to you,’ or ‘I rented it to you,’ or ‘I deposited it with you,’ and the other says, ‘Nothing of the kind ever happened,’ or he says, ‘Yes, it happened, but I returned it to you and the guarding ended and no claim remains between us,’ the defendant swears an oath of inducement and is exempt.” Again, an oath of inducement, not the watchmen’s oath. Because the person is not admitting that there is a guarding contract here. The watchmen’s oath applies only within the framework of the guarding contract when you come to exempt yourself. But if there is a dispute whether there is any contract here at all, how can one make me swear? This is just complete denial. Okay? So that is clear, straightforward Maimonides. So in short we have a difficulty: how can Ri Migash claim that this is the watchmen’s oath? Two difficulties. First, how can there be a watchmen’s oath when I deny that there was any guarding contract? Second, why is the situation depicted in the Mishnah one of partial admission? If you are already talking about the watchmen’s oath, talk about the whole thing; you don’t need partial admission in order to become liable for the watchmen’s oath. Look at Maimonides in the Commentary on the Mishnah, after chapter 2 of rental. The dispute of Rabbi Meir—by the way, let me remind you that Maimonides’ father—Rabbi Maimon—was a judge, and a disciple of Ri Migash. And Maimonides as a child still saw Ri Migash; he writes about it. “As a child I merited to see the man, and his face was like the face of an angel of the Lord of hosts”—with enormous admiration, by the way, for Ri Migash. Therefore many riddles in Maimonides’ teachings are solved—various questions that later authorities cannot resolve are solved if one looks at Ri Migash; very often the root is there. In quite a number of cases I found that one can see the solution to the difficulty there. Look now here: “The dispute of Rabbi Meir and the Sages is about grapes ready to be harvested, and the law follows the Sages. And specifically if he entrusted them to him as an act of guarding”—you see? He follows Ri Migash. “But with respect to buying and selling, and the laws of overreaching and partial admission, if the original claim was not in the context of guarding, then the rule in practice is that they are like movable property.”
[Speaker D] Maybe an oath of inducement?
[Rabbi Michael Abraham] Maybe an oath of inducement, but not the oath of bailees in such a case. Okay? So if he gave them to him for safekeeping, then it’s a dispute between Rabbi Meir and the Sages, only regarding a safekeeping arrangement. In Maimonides it sounds like we’re not talking here about the oath of bailees; we’re talking about a safekeeping transaction. The oath is the oath of partial admission, but this is a safekeeping transaction. Because what? Notice, you could say this in the Ri Migash as well. The Ri Migash too, when he says what he says, doesn’t say that we’re dealing with the oath of bailees. What is he trying to explain? He’s trying to explain why grapes aren’t considered as though already harvested, since in all the other passages grapes that are about to be harvested are treated as harvested. Why does a dispute arise here, and why do we rule in accordance with the Sages that they are not considered harvested? Meaning: because here the litigation is between the depositor and the bailee. He doesn’t write that this is the oath of bailees. It could be the oath of partial admission; it’s just that the litigation is between depositor and bailee. So what? In litigation between depositor and bailee, the grapes are considered attached to the ground. Why? Because the bailee’s job is to make sure they are not harvested. That’s not because of the laws of bailees, but because the real-life context we’re dealing with here is the context of a safekeeping contract, of a safekeeping arrangement. The oath is the oath of partial admission. And therefore Maimonides says—look at the underlined line in the quotation from his commentary on the Mishnah—if the main claim was not in the capacity of safekeeping. He’s not talking about the oath being the oath of bailees, but about the claim by virtue of which I come with claims against the bailee: it’s a claim that I gave this to you for safekeeping. It’s not a claim that I lent you something, or that I sold you something and you didn’t pay me, or things like that. This is a claim against a bailee. If the claim is a claim against a bailee, then the oath—which is the oath of partial admission—is an oath concerning land. And therefore the Sages say he does not swear. Why? Since in litigation between bailee and depositor, grapes ready to be harvested are like land, because they are not standing to be harvested—the bailee is supposed to ensure that they are not harvested. Not because this is the oath of bailees; it’s the oath of partial admission. So if that’s so, then of course the two questions we asked are resolved. First: why do they set it up as five against ten, when apparently he is denying the whole claim? Not at all—it’s the oath of partial admission, so you have to say that he admitted part of it. Second: how can the oath of bailees apply if he denies everything? Indeed, it doesn’t. It’s the oath of partial admission, not the oath of bailees. In the oath of partial admission there is a connection, and he admits part of the claim, but the transaction under discussion is a safekeeping transaction, because only then can the grapes be considered attached grapes, since otherwise grapes that are already ripe enough are considered harvested, and then even the Sages would agree that one swears concerning them.
[Speaker B] Isn’t the oath of partial admission because of the idea that a person can’t be so brazen as to deny him completely? Okay, why? Because the bailee is supposed to use it, and then there’s no money, and here he admits part of it. That’s not what the Ri Migash is saying at all.
[Rabbi Michael Abraham] It depends. What the medieval authorities (Rishonim) are discussing here depends on what the actual factual situation is. There are these additional five vines, but he says, “They’re not yours,” or he doesn’t have five vines at all—on the contrary, they burned, so he says, “They burned on me; what does that have to do with you? Those weren’t your vines.” Only in the second scenario would Rabbah’s reasoning apply, because in the second scenario I don’t have the money to give you for the grapes. If the vines were really here, then you’d be right. There are actually more difficulties here; I’ll note them later. There’s also “here it is”—this is land, after all. We’ll talk about that in a moment; I’ll comment on it. In any case, for our purposes, according to Maimonides’ wording in his commentary on the Mishnah, one certainly could understand that we’re really not dealing here with the oath of bailees. We’re dealing with litigation surrounding a safekeeping transaction, but the oath in question is the oath of partial admission, and then that solves the two questions. Let me add another remark here. Later authorities also ask, even on the side that this is the oath of partial admission—and I already noted this earlier, I’ll repeat it—even that can’t be. There is a rule in the oath of partial admission that when what I admit, I say “here it is,” I hand it over to you directly, then I don’t need to swear concerning the rest. Now the Talmud in tractate Bava Metzia, on page 4 I think, says there that whenever the thing I admit is land, that is always “here it is.” Because say you claim from me two dunams of field, and I admit one dunam. Then clearly the dunam I admitted to you is right here. I don’t have to go home, bring it, and hand it over to you; it’s simply here. Once I admitted that you are the owner, I have handed it over to you, because handing it over just means admitting that you are the owner. I don’t need to take something and give it to you. With movable property, it’s in my house, I have to go home, give it to you, and by that close the matter. With land, the moment I admit, it is yours. Therefore with land it is by definition always “here it is.” Now if so, then it’s not clear what happens here. After all, here the vines are attached to the ground, right? So how can the oath of partial admission apply? The five vines that I admit are vines that are here, attached to the ground. By the way, even if the halakhic status of the grapes is like movable property for our purposes, that doesn’t matter, because physically they are here. Once I admitted that they are yours, take them. It’s a bit similar to what you described earlier: I effectively have them here. There also isn’t Rabbah’s evasion here; they’re here. But here, in this context, that’s relevant to “here it is,” so this is called “here it is.” So even the oath of partial admission doesn’t belong here. In short, this whole business is an unbelievable tangle. The oath of bailees can’t work, and the oath of partial admission also can’t work. So the medieval authorities (Rishonim) start getting subtle and casuistic about how it could nevertheless happen—what’s going on, how to make it work. Forced readings: maybe the grapes don’t matter—in short, detached grapes lying next to the trees, all sorts of scenarios; some of the grapes harvested, some not harvested; all kinds of wild forced interpretations. The whole thing doesn’t work. But look at Maimonides in his rulings. Maimonides, in the Laws of Hiring, chapter 2, a few laws earlier—chapter 2, law 4—look after the commentary on the Mishnah. Look at Maimonides: “One who gives his fellow something attached to the ground for safekeeping, even if they were grapes ready to be harvested, they are like land in the laws of bailees.” I remind you, this is said in the Laws of Hiring. Leave Maimonides aside for a moment. If I’m right in what I said in the commentary on the Mishnah and in the explanation of the Ri Migash—that really we are dealing with the oath of partial admission, but once the transaction is a safekeeping transaction it is considered like land—under which laws should this have appeared?
[Speaker B] In the laws of bailees?
[Rabbi Michael Abraham] In the Laws of Claims and Responses. Claims and Responses: you claim a certain amount from me, I admit part of it—oath of partial admission. If the claim is based on a safekeeping transaction, then it’s land and I don’t swear. The whole thing should appear in the Laws of Claims and Responses, because it’s not about the laws of bailees at all. Only in the Laws of Claims and Responses: if the transaction in question is a safekeeping transaction, then the grapes are considered land not because of the laws of bailees, but because the factual situation is that it was given for safekeeping. It has nothing to do with the laws of bailees at all. So why does it appear in the Laws of Hiring? It should appear in the Laws of Claims and Responses. More than that: he doesn’t even bring here a case of partial admission at all—notice? “One who gives his fellow something attached to the ground for safekeeping, even if they were grapes ready to be harvested, they are like land in the laws of bailees.” Exactly what we asked about the Ri Migash: why did they set it up here in a case of five and ten? Let them say, “I gave you ten, and you deny everything.” Since it’s a safekeeping arrangement or the oath of bailees, then this is land and you don’t swear concerning it. That is exactly what Maimonides does. But what about the discussion that appears in the Mishnah with the partial admission? Where does that law appear? Now look at the next Maimonides, in the Laws of Claims and Responses. Look in Laws of Claims and Responses, chapter 5: “If one claimed grapes ready to be harvested and dry grain ready to be cut, and the defendant admitted part and denied part, he swears concerning them like other movable property, provided they no longer need the ground, for anything ready to be harvested is considered harvested with regard to denial and admission. But if they still needed the ground, they are like land in every respect.” Here appears the case of partial admission. And where does it appear? In the Laws of Claims and Responses. Exactly where it really belongs, right? But why doesn’t he bring here the qualification: but if this was under the laws of bailees, then there is no oath of partial admission because the grapes are considered like land. That’s what he should have brought, as he said in the commentary on the Mishnah and in the Ri Migash, right? He should have qualified it here. When are you liable for the oath of partial admission? Unless the grapes were given under a safekeeping contract, in which case there is no obligation of the oath of partial admission because that is considered land. He does not bring that qualification. So neither in the Laws of Hiring nor in the Laws of Claims and Responses does the Mishnah’s story appear. What is happening here? The Raavad, in his gloss, says: “Abraham said: this colleague rules in accordance with Rabbi Meir.” Rabbi Meir says one is liable to swear; Maimonides says here one is liable to swear. But the master—that is the Rif—rules in accordance with the Sages. What, does Maimonides not rule like the Rif, that the law follows the Sages? Does he rule like Rabbi Meir, a lone opinion against the Sages? How can that be? “And the master, of blessed memory, saw all this, that there is a contradiction between the passages,” and so on. He doesn’t understand how Maimonides rules. The Raavad remains with it unresolved. Because Maimonides really—if he is bringing the case of our Mishnah—brings Rabbi Meir’s view, that one swears, not the Sages’ view, that it is like land. The Raavad is of course not right. Because Maimonides is not speaking here about the laws of bailees. He does not write, “He claimed against him grapes ready to be harvested”—what does “he claimed” mean? “I deposited grapes with you”? Is this a claim between depositor and bailee? It doesn’t say that. Maybe this is a claim in sale and purchase; maybe damages; I don’t know, various other things. It is not mentioned here that this is in the laws of bailees. So this is not the case of the Mishnah at all, and it has nothing to do with Rabbi Meir and the Sages. So what is going on with Maimonides? Clearly, in Maimonides’ legal rulings—not in the commentary on the Mishnah—Maimonides learned our Mishnah as referring to the oath of bailees. Not about a safekeeping transaction, as I said in the commentary on the Mishnah and perhaps also in the Ri Migash. This is the oath of bailees. And therefore Maimonides indeed says: if it is about the oath of bailees, then you don’t need partial admission. That’s why it appears in the Laws of Hiring. He says: regarding the oath of bailees, if you need to swear concerning grapes ready to be harvested, that is considered land because in the laws of the oath of bailees it is land. You ask me what happens in the laws of Claims and Responses? In the laws of Claims and Responses it’s irrelevant. In the laws of Claims and Responses there is partial admission here and the oath of partial admission and everything is fine; it has nothing to do with this matter. Our Mishnah deals with the oath of bailees. And indeed, as the later authorities ask—and the medieval authorities (Rishonim) as well, but the later authorities even more so regarding the Ri Migash—there really is no need to set it up as partial admission, and therefore Maimonides does not bring the story of partial admission in the context of the oath of bailees. He simply says: if he claimed against him concerning grapes ready to be harvested, they have the status of land in the laws of bailees. That’s all. But then he doesn’t explain the Mishnah to me. The Mishnah does set it up in a case of partial admission. Is that how Maimonides understood the Mishnah? Why does the Mishnah set it up as a case of partial admission? So look, in Tosafot Yom Tov—I bring it here—and after that there is the Shakh, who is lengthy; let’s leave him aside for now. I didn’t bring Rabbi Akiva Eiger here. Okay. Tosafot Yom Tov basically asks all these questions, and the Shakh also asks all these questions, and he says therefore Maimonides clearly got confused here, he’s not right, and there is no law in accordance with him—he is simply saying something that is against the Talmud. It cannot be. We do not rule in accordance with him; he rejects him from the practical law. Very rare, by the way. He rejects Maimonides simply because he just got confused. Not because he disagrees, not because he rules like other medieval authorities (Rishonim); it’s simply a question that never gets off the ground, it’s directly against the Talmud, you can’t say such a thing, period. He rejects him from practical law. Tosafot Yom Tov also says something here in Maimonides is illogical; he raises difficulties. But it was clear to everyone that Maimonides is speaking about the oath of bailees, not the oath of partial admission—and rightly so, as I said before—because Maimonides brings it in the Laws of Hiring, not in the Laws of Claims and Responses. Okay? So this is the oath of bailees. It’s not “matters of bailees,” as I explained in the commentary on the Mishnah; it is the oath of bailees. But then the question returns: how can the oath of bailees apply when I deny the very existence of a safekeeping contract? And if this is the oath of bailees, why does the Mishnah speak in a situation where I partially admit? Maimonides indeed omits that in the Laws of Hiring. But how does he explain the Mishnah? The Mishnah does speak specifically about a situation of partial admission. I also mentioned the law of “here it is.” I want to propose an explanation for what Maimonides and the Ri Migash are saying, and consequently also the commentary on the Mishnah and the Ri Migash and everything—because in the legal rulings we definitely have to say this, and then the commentary on the Mishnah can also be explained this way, and the Ri Migash too—and we don’t need to say that this is the oath of partial admission within a bailee transaction, as I wanted to say there. Again, what do I need to resolve? If Maimonides says this is the oath of bailees—and now I claim that the Ri Migash said this too, and Maimonides in the commentary on the Mishnah as well; certainly now I’m taking everybody with me, because with Maimonides I need to find a resolution, and that will resolve them too. Okay. So what is difficult? First, how can the oath of bailees apply when I deny that there was any transaction? I’m not a bailee at all. I don’t know you. The oath of bailees doesn’t apply. We saw that Maimonides himself rules that there is no oath of bailees in such a case. Second, why did the Mishnah set it up in a situation of partial admission? Okay. If it’s the oath of bailees, then what we do gain is the problem of “here it is.” Meaning, “here it is” says: then why is there an oath of partial admission here, if it’s “here it is”? In the oath of bailees there is no law of “here it is,” so there there’s no problem. In that sense this is actually good. But those two difficulties are difficulties we need to resolve. I return to Rabbah—someone mentioned Rabbah earlier—on why one swears the oath of partial admission. There is a statement of Rabbah in Bava Metzia page 3, and elsewhere in Ketubot; it appears in several places. Why? Why does one swear the oath of partial admission? The initial impression when one reads Rabbah—“Why did the Torah say that one who partially admits the claim must swear?” That’s how Rabbah’s quotation begins. So apparently this is a reason for the verse. Meaning, he is asking why the Torah obligates one who partially admits to take an oath. But when you look at both Rashi and Tosafot, they explain the question differently—that is, the question itself differently. Not: why did the Torah obligate him? But: why don’t we exempt him? The fact that the Torah obligated him—it did. But why don’t we exempt him? After all, he has a migo: he could have denied everything, not just admitted part. Or according to Rashi this is called like “returning a lost object”; doesn’t matter—there are reasons to exempt him. That is what Rabbah is asking. And why indeed is he liable? Why, in general, does one who partially admits… After all, the burden of proof is on the claimant. You claim from me a hundred. Fifty I admit to you—fine, I really owe you fifty. But the other fifty you want to extract from me—bring proof! Why do I need to swear to you? The burden of proof is on the claimant. So first of all, the question is why the Torah obligates at all, not why it doesn’t exempt him because of migo and all that. The answer is very simple. In partial admission—and by the way, we dealt with this, whoever was in the previous class—there is a very similar foundation, to the difference between “it never happened” and “I paid.” In partial admission it is more—although I say “it never happened” about the second part, it is somewhat similar to “I paid.” Why? When you attack me and say, “I lent you a hundred shekels,” and I say, “I don’t know you at all, what do you want from me?” The burden of proof is on the claimant. “It never happened”—what do you want? Bring proof, otherwise I’m not talking to you. You haven’t proved that you have any connection to the money in question. You haven’t managed to convince the court that there’s even anything to sit over here. You brought no indication of any monetary nexus; you proved no connection whatsoever to this money, so we have nothing to sit over. Bring us proof so we can even begin to sit. But if I claim against you a hundred and you admit fifty—
[Speaker E] Then there was a transaction here.
[Rabbi Michael Abraham] We have a disagreement about the size of the loan. But we both agree that there was a loan. It’s not that I just grabbed a person off the street and pinned on him that he borrowed money from me. I could grab the whole universe and say everyone owes me a hundred shekels now; now line up like a shepherd counting his flock, go one after another and prove to me that you don’t owe me a hundred shekels. That’s absurd. Bring proof that there is even some kind of legal interaction between you and him. But here it’s not like that—I didn’t just grab a person in the street. He too agrees that I lent him money. He only claims that I lent him fifty, not a hundred. Still, the burden of proof is on the claimant. Meaning, I can’t win without bringing proof against him. But you can’t say I just seized on some random person with no connection at all. So true, in terms of possession his position is stronger; obviously without proof I won’t extract from him. But the court says to him: you know what? To satisfy us, swear. You don’t just walk away with a win. There are still some grounds to the matter. There is some monetary basis for the claimant; he has shown that he has some legal dealing with you. Now there is a dispute over what amount. So in a certain sense this is like the claim “I paid” as opposed to “it never happened.” “I paid” basically says there was a loan, I just repaid it. So that means no one pinned something on you out of nowhere; there is some real issue here. There is a dispute whether you repaid or not. That is in “I paid.” In “it never happened,” prove that I have any legal dealing with you at all—what do you want? I owe you nothing. Okay? Therefore there is room to say that since here, although I am the possessor and the defendant and he is the claimant, I am somewhat in a defensive position. Because I say: yes, there was a loan, but only fifty—what do you want? That motion, the motion of someone defending himself, so to speak. If I say “it never happened,” “it never happened,” in body language that’s like: what do you want from me, go home. You understand? Here I stand in a kind of defensive posture: wait, true there was a loan, but why a hundred? Only fifty. Once I am in a defensive posture, then they don’t exempt me just like that. They don’t say, okay, you’re exempt because the burden of proof is on the claimant, you’re the possessor. No. If you are in a defensive posture, you need to convince the court that you really are exempt. Fine, if you swear you will be exempt. True, the burden of proof is still on the claimant, but an oath is demanded from you. Therefore where does the oath of partial admission come from? It comes from the reasoning that says: if you admit half and deny half, then even concerning the half you deny, you are somewhat in a defensive posture. If you denied everything, total denial—that’s it. But if you deny half, then even on the half you deny you are in some kind of defensive posture, and therefore swear to me about that.
[Speaker C] The respondent says this is just reasoning in general, but this is Torah law; partial admission is…
[Rabbi Michael Abraham] And therefore what? Therefore there’s no logic to it? That is the logic in it.
[Speaker C] You can attach logic to it, but fundamentally it’s…
[Rabbi Michael Abraham] If I can. That’s also why Rabbah says, when he asks, “Why did the Torah say that one who partially admits the claim must swear,” he doesn’t answer there the question of why he must swear; it’s obvious why he must swear. He must swear because there are grounds to the matter; he is in a defensive posture. One who is in a defensive posture must swear. He only asks: fine, but exempt him—he has a migo, he could have denied everything. The discussions of migo exempting from an oath and all the medieval authorities’ (Rishonim) discussions there aren’t important right now, but there are explanations there for why he is not exempted. But that’s not the discussion of why he is liable. Why? Because why he is liable is a completely different explanation; it’s not because of all of Rabbah. He is liable because he is in a defensive posture. Okay? Good. So we learned from partial admission that if someone admits half and denies the second half, then concerning the second half, even though he denies it—he says “it never happened,” there was no second half, only the first half—even so, that counts as his being in a defensive posture. Okay? Good. Now, the oath of bailees. What is the oath of bailees? The oath of bailees is a situation where I deposited property with you and you say, “It was burned.” What does “it was burned” mean? There was a safekeeping arrangement, you agree, right? You’re just saying: true, but I’m exempt, because a paid bailee is exempt in a case of unavoidable accident; an unavoidable accident happened, I’m exempt. You are in a defensive posture. You are basically claiming: true, there was a safekeeping arrangement, I have responsibility, but this was an unavoidable accident, I want to be exempt. Again, that’s very similar to “I paid” rather than “it never happened,” right? Therefore you are liable to swear. Therefore too, if I say to someone, “I deposited a cow with you,” and he says, “It never happened”—not that it burned—
[Speaker E] He doesn’t have to swear.
[Rabbi Michael Abraham] Why? Because you are not in a defensive posture at all. What, I haven’t proved that there are any grounds to the matter at all, any monetary nexus. It could be I just arbitrarily fell on you with a claim. So I have to bring proof before the court will even sit; you do not have to swear. Therefore Maimonides rules that in the oath of bailees, if there is a safekeeping contract and you merely claim an exempting claim, you are liable to swear. But if you deny the very existence of a safekeeping contract, there will be no oath of bailees here. You are not in a defensive posture at all. Now look at something nice.
[Speaker E] Can’t you say “it never happened” if I lend you fifty and you say I lent you a hundred, and I say “it never happened” regarding the loan of a hundred?
[Rabbi Michael Abraham] No, you say this loan was fifty, not a hundred. You can play with the words, but what you’re really saying is: there was a loan, only of fifty.
[Speaker E] I don’t recognize that thing at all.
[Rabbi Michael Abraham] You don’t recognize the second part.
[Speaker E] No, in general—that there was no loan of a hundred.
[Rabbi Michael Abraham] What do you mean? But there was a loan of fifty.
[Speaker E] So it’s just words.
[Rabbi Michael Abraham] You’re saying there was a loan, just not of a hundred but of fifty. At least that’s how the Torah sees it. In any case, you can’t say you’re completely out of the blue. Meaning, you’re in that territory; there’s just a dispute about the size of the loan, and therefore they obligate an oath. Again, your hand is stronger—you are the defendant—but there are grounds to the matter, so you’ll need to swear. Okay? Now look at something nice. If someone comes and says, “I gave you ten loaded vines,” and you say, “It never happened,” then certainly there won’t be an oath of bailees, right? Exempt. But if someone says, “I gave you ten vines,” and you say, “You gave me five; as for five, it never happened”—not “five burned”—there will be an obligation of an oath. Which one?
[Speaker B] Bailees. Both.
[Rabbi Michael Abraham] First of all there would be the oath of partial admission—leave aside for a moment that this is land, we’ll get to that in a second—there would be the oath of partial admission because you admit part. But there would also be the oath of bailees. Why? Because you are a bailee in a defensive posture. You are basically admitting there was an obligation of safekeeping; there is only a dispute about how much, five or ten. From the laws of partial admission we learn that there is also an oath of bailees here. Because from the laws of partial admission we understand that if you admit part, then you are already in a defensive posture also concerning the second part. But from the laws of bailees we understand that a bailee who is in a defensive posture must swear, right? So in fact from the laws of partial admission we learn there is here both the oath of partial admission and the oath of bailees. Now look at something nice. Since by the law of “here it is” there is no oath of partial admission here, because the five vines concerning which he admitted are land, right? So partial admission doesn’t apply here. But in the oath of bailees there is no “here it is.” And from the laws of partial admission I learned that there is also an oath of bailees here. Therefore he must swear the oath of bailees, and that is Maimonides and the Ri Migash. The oath of partial admission doesn’t apply here because this is “here it is,” but because this is a case of partial admission there is also an oath of bailees regarding the rest, and on that there is no law of “here it is.” We asked two things. How can there be an oath of bailees when you deny the very existence of the oath—of the safekeeping? Answer: if I denied the whole safekeeping, indeed there would not be. But precisely because concerning five I do admit, there is only a dispute about the amount or scope of the safekeeping, so in fact I am a bailee in a defensive posture, and I am liable to the oath of bailees. The second question was: then why did they set it up as partial admission? Let them set it up as total denial, and in the oath of bailees you don’t need partial admission at all. What do you mean? In the oath of bailees, when I say “it never happened,” if that were about the whole thing I would be liable for nothing. Precisely because I say “it never happened,” there has to be a part I admit, and only a part I deny, for there to be an oath of bailees on that. It drags it along. Exactly. And with that all three claims are resolved. Why did they set it up as partial admission? Because without that there would be no oath of bailees regarding the rest, right? Why is there an oath of bailees when I’m actually denying those five vines—I wasn’t a bailee for them. What do you mean? But you admitted five other vines, so from the logic of partial admission I understand that in fact also regarding the remaining five you are in a defensive posture. A bailee in a defensive posture must swear. Fine, but with partial… Third question: but with partial admission there is “here it is,” so there is no obligation regarding the rest because of the law of “here it is.” It’s not the oath of partial admission; it’s the oath of bailees. There is no “here it is” in the oath of bailees.
[Speaker C] But then you don’t need to swear because of partial admission.
[Rabbi Michael Abraham] Right, I swear the oath of bailees, not the oath of partial admission. I’m only saying that in this oath, were it not land or were there not “here it is,” there would be liability both by the law of partial admission and by the law of the oath of bailees. There would be both.
[Speaker B] Here it’s only by the law of…
[Rabbi Michael Abraham] But because there is “here it is,” that removes the oath of partial admission. What remains is the oath of bailees. Why do we need to set it up in a case of partial admission? Because without that there wouldn’t be an oath of bailees. Because when I deny the very existence of a safekeeping contract, if that were about the whole thing I wouldn’t need to swear the oath of bailees. Only because I agree to part of the safekeeping contract, then also regarding the second part of the safekeeping contract I am in a defensive posture, and so I need to swear.
[Speaker B] Now I want to prove that when I removed the partial admission, I’m left with the oath of bailees. Yes. Yes. It’s not like the cases we discussed with fire, right? And it’s not the same thing, because it’s enough for me that I learn the underlying idea there; it doesn’t bother me that there is “here it is” here.
[Rabbi Michael Abraham] Same thing. From winnowing I learn the idea that wind is involved. And now I threw out the winnower.
[Speaker B] Say, if his stone, his knife, and his burden—there really there was perhaps reason to exempt for concealed items, because I learn that the wind…
[Rabbi Michael Abraham] No, I learn—no, the opposite, that’s exactly what I’m saying—you don’t need to exempt for concealed items, because what I learn from fire is that the involvement of wind doesn’t interfere. Now I’m speaking about the laws of a pit; leave concealed items aside. In the laws of a pit, if there was involvement of wind, that doesn’t interfere. So what’s the problem?
[Speaker B] No, there it was like there was a hava amina to say that maybe there really is a side, because after all I learn from fire the whole matter of wind.
[Rabbi Michael Abraham] That’s if you understand it as a common denominator, not as a conceptual construction. And the Rosh says exactly that. No, no—from there, it’s not the common denominator; there’s no common denominator between winnowing and throwing. Between—sorry—between fire and pit. The common denominator is “your property and its guarding is upon you,” but not a common denominator in them as specific categories of damage. Okay.
[Speaker B] Just as there isn’t now a common denominator in partial admission…
[Rabbi Michael Abraham] Now, wait, here—you already jumped ahead. I’m hesitating a bit here. First of all, step by step. I’m doing this pedagogically so it will be possible to follow. So basically what I want to claim is that there is a conceptual construction here. A conceptual construction basically says: from the laws of partial admission we learn that if there is a part I admit, then I am in a defensive posture also concerning the part I deny. From the laws of the oath of bailees I learn that if I deny—if I am, sorry, in a defensive posture and the claim is a safekeeping claim, then I need to swear the oath of bailees. The fusion or smelting together of these two says, in effect, that if I partially admit in a safekeeping contract, I will be liable to the oath of bailees concerning the rest. And also to the oath of partial admission, of course. But here, in this context, since this is “here it is,” the oath of partial admission doesn’t apply; what remains is only the oath of bailees.
[Speaker C] It’s a kind of…
[Rabbi Michael Abraham] What? A side… It counts, yes. Meaning, it counts as a contract that cannot simply be dismissed. It’s a contract; there are some grounds to think there was a contract. You are basically in a defensive posture—swear. Okay? So if I understand the oath of bailees and the oath of partial admission, I can smelt them together and produce a third oath: the oath of the defensive bailee. The oath of partial admission is the oath of people on the defensive. The oath of bailees is the oath of bailees. The oath of a bailee who partially admits and says “it never happened” about the rest is the oath of the defensive bailee—which is the fusion of the feature of partial admission with the feature of the bailee, creating a third type of oath that is a derivative of the previous two. But a derivative not from the common denominator of the previous two; on the contrary, from fusing them together and creating a third concept.
[Speaker E] Isn’t that just the regular oath of bailees?
[Rabbi Michael Abraham] No. The regular oath of bailees is a situation where it is clear that there was a safekeeping contract, so clearly you are in a defensive posture—no problem. But here, who says this counts as a defensive posture? Only thanks to the logic of partial admission do I understand that even though you deny the existence of a safekeeping contract for the rest of the vines, this counts as a bailee in a defensive posture, and therefore you will be liable to the oath of bailees. From the laws of the oath of bailees alone, you could not have obligated him here without partial admission. Therefore I said earlier, maybe in this situation it will really be symmetrical. Meaning because… But—and now I’ll tell you what I’m hesitating about here—it might be that this is a common denominator and not a conceptual construction. That’s a big novelty, but it seems to me to have logic. Basically I want to make the following claim: the oath of bailees and the oath of partial admission are both just examples of the oath of people on the defensive. All Torah oaths are oaths of people on the defensive. And that is now the common denominator for all the oaths. I’m not fusing; on the contrary, now I’m making a common denominator. What is common to the three Torah oaths? The oath of one witness, the oath of partial admission, and the oath of bailees. In all three, the defendant should seemingly win, because the burden of proof is on the claimant, and nevertheless we demand from him: give me some assurance, swear. Why? Because he is a defendant on the defensive. He is not a defendant who can wave off the claimant and say, “Go away, I don’t know you.” There are some grounds to the matter in favor of the claimant; there is a monetary nexus in favor of the claimant. With one witness this is very clear: he brought the testimony of one witness in his favor. You can’t say he just grabbed him with no grounds whatsoever. There aren’t two witnesses, so money is not extracted, but one witness is enough to create an obligation of defense on the defendant. In partial admission, we saw: because I agree that there was a contract, there is only a dispute over its amount, I am in a defensive posture regarding the second part of the contract. Right?
[Speaker B] In the oath of bailees, the same thing.
[Rabbi Michael Abraham] After all, you say there was a contract. You want to claim that you were subject to an unavoidable accident and therefore exempt. So it’s not so simple, especially since we know—and the medieval authorities already say this—that what happens to a bailee happens in his own house. The depositor doesn’t know what happened in his house. So clearly the Torah has to make sure the bailee doesn’t make a mockery of this and lie there, and say, “Your cow went, I don’t know what, your donkey met disaster,” okay, yes, it got lost. He doesn’t know; it was in the bailee’s house—that’s the whole idea of a safekeeping contract. I can’t guard it myself, so take it to your house, I trust you, guard it. The Torah says: let’s make sure this fellow didn’t take the donkey into his house and then say that the donkey died through unavoidable accident. Let him swear. So again there is some point here that because I am in a weak position—I’m the depositor—the Torah says the bailee is in a defensive posture. I say there is a safekeeping contract; you owe him a report under oath about what happened, what happened to this donkey or this cow. Okay? Again, it is the oath of people on the defensive. But notice: if so, then the oath of partial admission, the oath of one witness, and the oath of bailees are all just three examples whose common denominator is that in all of them it is the oath of a defendant on the defensive. Normally the defendant wins because the burden of proof is on the claimant. When the defendant is on the defensive, there is nevertheless something in favor of the claimant—it’s not that some random claimant arrives with no grounds at all that he belongs in the matter—in such a place we obligate the defendant to swear. And then it’s a common denominator, not a conceptual construction. I basically want to claim that there is no need to hybridize partial admission and the oath of bailees. Rather, every place where the defendant is in some kind of defensive position—not just someone who can wave off the claimant and that’s it—in every such place he will need to swear. That is a very big novelty, because then it means there are many more situations where I can impose a Torah oath on him—not a rabbinic oath—every place where some situation is created in which there are grounds in favor of the claimant, it is not true that the defendant can just wave him off and that’s it; we will impose on him a Torah-level oath, learned from the common denominator of the three Torah oaths.
[Speaker B] So then why not say this in “I paid”? Again—someone who says, “I paid” the whole loan.
[Rabbi Michael Abraham] Maybe in fact I will say it. Who says not? It could be I would say it. Yes?
[Speaker B] Meaning, maybe even Rav Nachman’s oath of inducement would according to this be a Torah oath.
[Rabbi Michael Abraham] Why? There is a Rashi in Bava Kamma page 107 that, for a deposit for example, even in total denial he is liable to an oath—a Torah oath, like the oath of partial admission. Only in a loan do you have Rabbah’s discussion and so on, but in a deposit, where Rabbah’s whole rationale doesn’t apply, he is Torah-liable even in total denial. Now what actually happens—what actually comes out—and more than that, what I said earlier: Rabbah’s whole discussion basically explains why you are exempt from an oath. What comes out of Bava Kamma 107 is that even in total denial of a loan he is basically liable to an oath. It’s just that there the whole matter of Rabbah isn’t present, so the migo exempts him. So it comes out that the basic obligation of oath really exists even in total denial. It’s only because of the presumption and the migo and the idea that a person is not brazen in someone’s face and things like that, that in the end, in total denial, he is exempted; in partial admission, he is not exempted. Exempted—but in principle there is an obligation of oath. And in a deposit there is not only an obligation of oath in principle; there is also in practice an obligation of oath according to Rashi—Tosafot disagrees with him there. Okay, so that really shows that basically there is an obligation of oath on every defendant, as long as I know that he is… in some defensive posture. If it’s just some random person, obviously not; then there are no grounds to the matter. But every defendant on the defensive may be subject to an obligation of oath. And every time there is no obligation of oath, that will only be because there is some explanation of migo or lack of brazenness, concern for evasion, or things of that kind. But in principle there is an obligation of oath on everyone. On the contrary, that strongly reinforces what I said: the obligation of oath is much more fundamental than partial admission. There is an obligation of oath on every defendant who is on the defensive. Now we have to examine in each case whether he is on the defensive, and if so whether he does not have some migo that nevertheless exempts him, despite his being on the defensive, and things like that. That’s all. And if that really is so, then first, it is a very big novelty, because then it turns out that indeed I can think perhaps of many more situations where there would be a Torah oath, besides these three oaths. Everywhere that the defendant is on the defensive there will be a Torah oath. That is a novelty. I don’t know of a source, indication, or proof for it, but it seems to me that this is what comes out here. Now notice: the Talmud says also in Bava Kamma page 107, and also in Sanhedrin page 3, where do we learn the oath of partial admission from? “Concerning which he says, ‘This is it.’” “This is it” means: I admit part—“this is it”—and not another part. But this verse was said in the middle of the section of bailees, and the Talmud says: but it is speaking about a loan, about admissions regarding loans, not about a deposit. Why? It’s in the section of a deposit! So the Talmud says: “different sections are intermingled here.” This verse, “concerning which he says, ‘This is it,’” is a verse speaking about a loan that is planted in the middle of the section about a deposit. What is the Torah trying to do, confuse us? I don’t understand. Put it in the section about a loan: “If you lend money to My people”—“concerning which he says, ‘This is it’”—he must swear. What’s the problem? There is a section about a loan. Why do we need to stick the verse about partial admission in a loan right in the middle of the discussion of the laws of bailees, of the oath of bailees, when it is really talking about the oath of partial admission? You can already see where I’m heading. The Torah did this intentionally to tell me that the oath of partial admission is the oath of bailees; it is the same oath. That’s why it mixes the sections. It mixes the sections because these aren’t two sections; this is one section, it is the same oath—the oath of people on the defensive. In that the oath of partial admission, the oath of bailees, and also the oath of one witness, basically, are all just examples. Just like we saw at the beginning of Bava Kamma that there are four primary categories of damage—ox, pit, grazer, and fire—and each has its own characteristics. What is the common denominator among them, what is common to all of them? That they are “your property and its guarding is upon you.” Any such thing from now on—anything that is your property and its guarding is upon you—if it caused damage, you are liable to pay. You don’t now need to get to whether it resembles that one or resembles this one; there’s some dispute about this among the later authorities, not important, and among medieval and later authorities, but in principle, same thing here. I would write a Mishnah as at the beginning of Bava Kamma; I would write it in tractate Shevuot: There are three primary categories of oaths—the oath of one witness, the oath of partial admission, and the oath of bailees. The common denominator among them is that in all of them it is the oath of a defendant on the defensive, and therefore every defendant on the defensive, even if he is not one of these, is liable to an oath. And “the common denominator comes to include what?” I would say, like in Bava Kamma page 6, to include some case—I would perhaps find this case, yes? The case of these five and five vines. Truly, in a place where the oath of one witness does not apply, and the oath of partial admission does not apply, and the oath of bailees does not apply, but their common denominator does apply: this is a defendant on the defensive. This is a defendant on the defensive, and he is liable to an oath. That’s all—that is what it comes to include. If I learn it this way, then it’s not a conceptual construction; it is the common denominator. It’s very interesting. You can see it this way, you can see it that way—I don’t know. But think about it. What?
[Speaker C] It’s even more than the previous one.
[Rabbi Michael Abraham] Maybe. Fine, think about it—you can present it this way, and you can present it that way.
[Speaker C] Okay, we’ll stop here.