The Golden Chapter: Money and Acquisition Through Money – Lesson 9

Okay, so what I wanted to deal with today is really some topic outside the regular sequence, though it does connect. I want to talk a bit about the meaning of Choshen Mishpat. We talked about money, about economics, about legal dimensions in the conceptualization of commerce, the conceptual frameworks and fixing of the various modes of trade, the concepts of ownership, acquisition, money, value, and so on. I want to speak a bit from a broader perspective: what is law בכלל, what is Choshen Mishpat, and apparently in Jewish law too there is some separate category here. I’ll start perhaps with a very unusual law, and maybe also a disputed one. The Talmud in tractate Bava Kamma, in the chapter HaKones, brings the case of King David sending the mighty men to bring him water from the well of Bethlehem. And the Talmud expounds this and says that in fact he sent those men to the Sanhedrin sitting at the gate of Bethlehem to clarify a halakhic ruling. What was that ruling? The Talmud says there are several possibilities. It says like this: Rav Huna said, “There were stacks of barley belonging to Jews, and Philistines were hiding in them.” There were stacks of barley of Jews, doesn’t matter, the Philistines hid behind them or inside those stacks. And what he asked the Sanhedrin was: “May one save himself with another person’s property?” If I am at war with the Philistines and my life is in danger, in order to save myself am I allowed to damage someone else’s property, to burn those stacks that the Philistines are hiding in? He was king. They sent back to him: “A person may not save himself with another person’s property, but you are a king, and a king may break through to make himself a road, and no one protests him.” The answer is basically: forbidden. A person cannot save himself with another person’s property. A king is something else; he can expropriate property, he has different powers. But an ordinary private individual in such a situation cannot save himself with another person’s property. Let’s picture the situation: someone is aiming a rifle at me and he’s inside a stack next to me. I know he’s hiding behind it, aiming a rifle at me, and I’m about to die in half a minute. Now I ask myself whether to burn that stack so I can escape, or I don’t know, take him out, whatever it may be. Forbidden. I have to die. I have to die and not damage or steal my fellow’s property. A person may not save himself with another person’s property. That’s what it says here. A king is allowed, but I’m dealing right now with a private individual. Now on the face of it this is very strange, because we know there are three cardinal sins: idolatry, forbidden sexual relations, and murder. In those three, one must be killed rather than transgress; even if I have to give up my life I may not commit those three sins. In every other area, one transgresses rather than be killed. Theft, or causing damage, is not one of the three cardinal sins. And causing damage is in any case a question what prohibition there is there, if any; all the Torah says is that if you caused damage you have to pay. The question whether there is a prohibition against causing damage is always one of the opening topics in Bava Kamma. But it’s not simple. Here it’s even worse: maybe there’s no prohibition at all. Not only is it not such a severe prohibition that one must be killed rather than transgress it, maybe there’s no prohibition at all, only an obligation of compensation. More than that, if there’s an obligation of compensation then what’s the problem? Burn it and compensate him afterward, pay him. Then there’s no problem at all. How can it be that a person may not save himself with another person’s property? Indeed Tosafot there says: “What does it mean, may he save himself with another’s property? The question was whether he is obligated to pay when he saved himself because of danger to life.” The question is not whether one may do such a thing, but whether one has to pay. And of course that also emerges from other medieval authorities (Rishonim) in the passage, most of the medieval authorities (Rishonim) in the passage. Of course this is forced, because in the Talmud itself it says… it says that a person may not save himself; it doesn’t say he is obligated to pay if he saved himself, it says he may not save himself. But on the other hand, the difficulty that led Tosafot to explain it this way is very clear. Fine, and here the dilemma is always whether to press the language or to press the logic. Yes. The plain meaning of the Talmud is that a person may not save himself with another person’s property. The plain meaning of logic is that this makes no sense. So now the question is which prevails: the linguistic interpretive consideration or the logical one. So Tosafot says, basically, the logical one. He is willing to force the Talmud that way. Now I’ll tell you more than that: what were the sides of King David’s doubt? King David sent the question whether a person may save himself or may not save himself. So they answered him that it is forbidden. What do you mean? Wait, they answered him that it is forbidden, meaning that he has to pay. That’s what it means, right? Not that it is forbidden, but that “forbidden” means he must pay if he did it. What is the side that says it’s permitted? No, no, the king being permitted is irrelevant; we are talking about an ordinary person. He had a side that maybe it’s permitted and maybe it’s forbidden; that was his doubt, so he sent the question to the Sanhedrin, right? The side that says it’s forbidden means that I have to pay. What is the side that says it’s permitted? That I don’t have to pay. And that is very strange. What do you mean? I burned the stack, understood, danger to life, I burned the stack in order to save myself. Why shouldn’t I pay? Why should he have to bear the cost of my rescue? If it’s my rescue, then pay. Pay the person for the stack he lost for this. Meaning that Tosafot gets pushed not only into an interpretive strain but also into a logical strain—sorry, not an interpretive strain. Tosafot is forced interpretively. It says “a person may not save himself,” and he says: it’s permitted, only he has to pay. That’s an interpretive strain. But there’s also a logical strain, because the other side of the doubt, the side that says a person is permitted to save himself, doesn’t mean permitted, but rather that he is exempt from payment. The very idea that a person should be exempt from payment—what do you mean? You did this, fine, it was danger to life, pay him for what you did. So Tosafot and the medieval authorities (Rishonim) are difficult both interpretively and logically. But on the other hand, it’s really very clear what drove Tosafot to press it that way. But Rashi there, the final Rashi on that page, says, “And let him save it—that they should not burn it, since one may not save himself with another’s property.” No, he had no other option, so clearly it is forbidden. Rashi says the Talmud has to be explained straightforwardly. A person may not save himself with another’s property. He has to die. Not like Tosafot. I once heard in the name of Rabbi Lichtenstein that he said this Rashi is probably some copyist’s error; it can’t be. It was that difficult for him. Well, it’s probably not a copyist’s error, but it is difficult. It’s true that the statement is difficult, and the medieval authorities (Rishonim) already ask about it, yes? Where do we find that theft or damage is one of the three cardinal sins? There are three; we don’t find more than that. And the Rashba in a responsum says this. “What I wrote seems to me simple and so obvious that I would say I hardly needed to write it because of its obviousness: for nothing stands before danger to life except those three enumerated ones.” Only those three listed sins. “Just imagine someone in the wilderness dying of thirst and finding a flask of water belonging to his fellow—must he die rather than drink? Even with intent to pay?” You have a flask of water, you’re walking alone in the desert—not the case of the two walking on the road and Rabbi Akiva. Rather, someone walking alone in the desert suddenly is about to die of thirst. He sees a flask of water belonging to his fellow. Is he forbidden even to touch it? Does he have to die? In the sense of “be killed rather than transgress”? So he says such a thing can’t be. “And even with intent to pay? And how could he be called a thief, when the owner would be obligated to give it to him for free and keep him alive?” If the owner were here, he would have to give me that flask of water. So how can you say that if I take that flask I am a thief? Notice, there are two claims here. One claim is: even if I were a thief, so what? The prohibition of theft is set aside in the face of danger to life. The second thing he says is: how can you call such a person a thief, when the owner himself would have been obligated to give me the flask of water? And this is what he proves from Ben Petora. He says: “Until Ben Petora came and expounded in tractate Bava Metzia regarding two who were walking on the road and one of them had a flask of water: if both drink, both die; if only one drinks, he reaches civilization. Better that both drink and die than that one should see the death of his fellow.” And Rabbi Akiva only disagreed there because of the verse “and your brother shall live with you”—your life comes first. And if he could give him the second one, there too Rabbi Akiva would agree that I am obligated to give it, right? Meaning all Rabbi Akiva said not to give it was because I need it to keep myself alive, but if I didn’t need it, obviously I would have to give it. And therefore, says the Rashba, if the owner of the property himself has to give the property in order to save me, then how can it be that if I take that property I’m a thief? “If so, what theft is there here, such that one would say: although he pays for the theft, he is still wicked? Rather, certainly to save oneself with intent to pay is obviously permitted.” Fine, but he has to give me permission to use it anyway, so what theft is there here? Well, this Rashba really is astonishing. Why is it astonishing? There’s a difference between saying you have an obligation to give me the flask of water to drink, and saying I’m allowed to take it and that it’s not theft. Think of a poor person. I may be obligated to give him charity if he asks me. Can he now take the charity by force if I don’t agree? No. The fact that I am obligated to give him, true, that’s between me and the Holy One, blessed be He, but you can’t take it from me. The Rashba says that since I am obligated to give it to him, then it isn’t even theft. A very big novelty. The Torah says I have to give; the Torah does not say that my money is ownerless and now he can take it even if I’m unwilling to give. But that is the Rashba’s claim. The point that emerges here from the Rashba, seemingly, is that if this really were theft—and straightforwardly it is theft—then he too would agree with Rashi that it is forbidden. He says yes, but it isn’t theft, because the owner himself is obligated to give it to me. Why do you need to get to that? Say that the prohibition of theft is set aside by danger to life. Why do you need to prove that it isn’t theft, especially since that’s a very great novelty and straightforwardly it is theft? The Rashba too is difficult. It seems to me that the way to understand this Rashi, this approach of Rashi and perhaps also the Rashba who agrees with him, is as follows. I ask myself: what defines the laws found in Choshen Mishpat? The legal laws in Jewish law? How would you define the laws of Choshen Mishpat? Right, monetary law between people, something like that. Monetary law. So according to that definition, can one of you explain to me why charity or interest do not appear in Choshen Mishpat but rather in Yoreh De’ah? Those too are monetary obligations between people. Interest is toward Heaven or toward one’s fellow? You and I, and both of us toward Heaven, I’m telling you; both sides violate it. And charity? That’s toward the Holy One, blessed be He. But why? It’s an obligation toward the poor person. If the poor person doesn’t want it then I really don’t have to give him. So why is that toward Heaven? Of course you have to, what do you mean, there’s a commandment to give to the poor. I also don’t have to refrain from robbing you, but there’s a prohibition of theft—fine. No, I agree with you, we just need to define it more precisely. Look, it is commonly accepted in discourse about Jewish law that in Jewish law there is no discourse of rights, only a discourse of obligations. Meaning: you don’t have rights; I have obligations to give you. That’s basically the claim, as opposed to the prevalent discourse today, where everyone talks about their rights, what they deserve, and so on. But the truth is, it seems to me this is not correct. There is a discourse of rights in Jewish law, and that discourse is called Choshen Mishpat. Choshen Mishpat is the halakhic discourse of rights. What do I mean? When speaking about rights and obligations, jurisprudence talks about this in terms of Hohfeld’s table. What is Hohfeld’s table? It is a table that states that corresponding to every right of yours there is an obligation of mine, and vice versa. For example, you have a right to your property, therefore I may not damage you or rob you. I borrowed from you, so you have a right to receive money from me, and therefore I have an obligation to give you the money. My obligation toward you always stands opposite a right that you have against me, and vice versa. Now it’s a bit more complex than that, but basically that’s the idea of Hohfeld’s table. That an obligation always stands opposite a right, and a right always stands opposite an obligation. What? Wait, we’ll see in a second. This is the accepted view in the legal world—yes, they teach this in law—that rights and obligations are always two sides of the same coin. Okay. So for example, I don’t know, demonstrations by workers, by disabled people, by whoever—everyone demonstrates for their rights. Now this always kills me. Disabled people have no rights. What rights do they have? They have no rights. They can ask us for assistance, but what right do they have to get my money? Who granted them that right? It may be that it’s not okay, it seems wrong, and one ought to help them live properly and function and behave in a reasonable and normal way. But that is my obligation; it is not their right. True, if the state established or granted them the right, then now they have a right, perfectly fine, after the law establishes it. But when you demonstrate to change the law or change government policy, you cannot demonstrate for your rights. You need to demonstrate to increase the obligations of the other side. You have no rights; nothing is owed to you. Okay? This very often arouses a kind of cruel connotation, very problematic. What? No, it’s not problematic, it’s the truth. The cruelty is in not giving to them, but determining that they have no rights and only I have obligations—that isn’t cruel; it’s only the definition of the nature of the relationship between me and them. Okay? What’s the difference? Now listen to what the difference is. In Jewish law, true, there are things that are obligations with no corresponding rights. For example, charity. Right? The poor person has no right to receive charity from me, but I have an obligation to give him charity. True, though the tribe of the priests maybe does, there are some disputes, but terumah—not tithes, the tithe goes to the Levite. So the claim is that in Jewish law there are obligations with no corresponding rights, like charity to the poor. By contrast, there are many obligations in Jewish law that do have corresponding rights. All the obligations of Choshen Mishpat. What appears in Choshen Mishpat? You borrowed, you have to pay. You caused damage, you have to compensate. You stole, you have to return. You were entrusted with something and did not guard it properly, contract law, you have to compensate the depositor for what happened. All of these are obligations placed upon me to pay you because you have a right to receive the money from me. That is the definition of Choshen Mishpat. What? Wait, in just a second I’ll get to King David. I want to sharpen the distinction first. Okay, so this is a question of rights and obligations, yes. Right, right, so the question is who has the right and who has the obligation, but these are always obligations corresponding to rights. That is what defines Choshen Mishpat. Choshen Mishpat is the collection of halakhic obligations whose basis lies in the rights of the other. Usually that’s monetary, by the way, but not only monetary. For example, humiliating someone. That isn’t money. A person has a right to dignity. If I humiliate him, I have harmed his right, therefore I have to pay. And I have to pay because he has a right to dignity. Of course, certainly, that is one of the payments. What do you mean, toward Heaven? It’s toward Heaven, it’s the same thing. Once you humiliated him, you must pay. It all appears in Choshen Mishpat. So what defines Choshen Mishpat is not monetary relations between people, but legal relations between people. Many times it’s about money, but not necessarily. What distinguishes legal relations from other relations? Legal relations are obligations of mine toward you whose basis lies in your right from me or against me. Okay? That’s the definition. By contrast, in Jewish law there are also two other columns. Even HaEzer is something else, but say Yoreh De’ah and Orach Chayim—these are what’s called rabbinics or judging. Judging is Choshen Mishpat and Even HaEzer, which is the legal layer of Jewish law, and Orach Chayim and Yoreh De’ah are the halakhic, non-legal layer of Jewish law. Okay? In the non-legal layer, all obligations are obligations that have no corresponding right. Now let’s go back for a second to charity and interest—why do they not appear in Choshen Mishpat? As you rightly said, with interest, even if both sides agree, it is forbidden to take it. It’s not a problem toward you; as far as Choshen Mishpat is concerned, you can give me gifts, right? If you consent, it isn’t theft; in Choshen Mishpat prohibitions of theft—if you consent, there’s no theft. But with interest, even if you consent, there is still a prohibition. Why? Not theft but a prohibition. Why? Because it doesn’t depend on you. This is what you meant by toward Heaven. The point is that my obligation not to take interest is not because you have a right to receive a loan without interest—you don’t. I have an obligation to give you a loan without interest. Okay? Same with charity: the poor person does not have a right to receive charity; I have an obligation to give him charity. But it is not an obligation whose basis lies in a right. Where is the difference? The difference is what happens if I didn’t fulfill my obligation. If this obligation belongs to Choshen Mishpat, you can sue me in court. Your rights were harmed; you petition the religious court, you say: protect me, my rights were violated. And they will compel me to pay because you have a right—not because I have an obligation, but because you have a right. Okay? By contrast, if I do not give charity to a poor person or if I took interest or something like that, the one supposedly harmed cannot petition the religious court, because he has no right. I have an obligation. It could be that the religious court will compel me to fulfill my obligation because there is a rule that a religious court compels fulfillment of commandments. So it will compel me under that principle, but this is not coercion by the court grounded in protection of violated rights. Okay? Think, for example, of… yes, there’s a story in the midrash that Alexander of Macedon came to Africa. He heard that there was a very wise king there, and so on, so he went to the king’s court to see how he judged the people in order to be impressed by his wisdom. One of the cases he saw there was that two people came before the king, and one of them said: look, I sold the other person—I bought from the other person a field, and I found buried in the field, in the ground, a treasure, gold coins. Now I want to return it to him; it’s not mine. I bought the field, and he won’t accept it. And the second one, the seller, says: when I sold the field, I sold the field and everything in it. If he found coins, the coins are his. And they have an argument where the buyer wants to return the coins and he won’t accept them. Okay? Fine, so of course there was a happy ending, a nice little tale: this one’s son and that one’s daughter got married, they received the treasure, and everything is wonderful. But I, being a Lithuanian type, obviously am not satisfied with those Hasidic stories, and I ask myself: okay, but what is the law? Don’t give me tricks with the son and the daughter—what is the law in such a case? Why doesn’t Jewish law deal with this case? You won’t find it; Jewish law does not deal with this case. Why not? Nobody’s rights were harmed. At most you can ask on whom there is an obligation to give, but the other side is not claiming his rights. The religious court will not deal with a case where there is no petitioner. The petitioner comes and says: my rights were harmed, protect me. If there is no petitioner, the court will not intervene. At most you can ask a halakhic decisor, not a religious court; you can ask a halakhic decisor what the law really is in such a case—who owns the treasure. But that is not for a court. It should not appear in Choshen Mishpat in principle; in principle it should appear in Yoreh De’ah. Okay, in the end what I want to say is that the indicator of the difference between Choshen Mishpat and the other parts is precisely the religious court. Therefore Choshen Mishpat is connected to a religious court because the court… What, didn’t you hear? Yoreh De’ah—you said Even HaEzer? No, not Even HaEzer. Even HaEzer? No, I said Even HaEzer is a different story; it belongs to the legal part of Jewish law. That’s why I’m talking about Yoreh De’ah. What about loans? Loans to the poor? Choshen Mishpat is loans and monetary law; release of debts in the Sabbatical year is something else, that’s in Yoreh De’ah. All the laws of the Sabbatical year are there anyway. So that’s unrelated; it’s a commandment. It’s all in Yoreh De’ah. Yes, obviously. So I want to sharpen this more. Look, take for example interest. Interest appears in Yoreh De’ah. Let me tell you a story. A story that Rabbi Yechezkel Abramsky told—he was the chief judge of London, the author of Chazon Yechezkel on the Tosefta. He was the chief judge of London, and London was a large city and there were several lower-level courts there, and he was the chief of the high court. One day, he says, a man came to him and said: listen, I went to that court and I sued so-and-so who took fixed interest from me, and the rule is that fixed interest is extracted by judges. What is fixed interest? It’s interest agreed upon at the time of stipulation, at the time of the loan: I lend you one hundred shekels, you return one hundred and ten. Non-fixed interest is: I give you one hundred and we didn’t stipulate anything; when you come back, you return one hundred and ten. That is rabbinic interest, non-fixed interest. Fixed interest is Torah-level. And the rule is that fixed interest is extracted by judges. Meaning, if you took interest and it was stipulated from the outset, the judges will take it from you and return it to the borrower. Non-fixed interest is not extracted by judges. Okay, that’s the rule. Now that Jew came before the lower court, before Chazon Yechezkel—not Divrei Yechezkel, Chazon Yechezkel—and says to the court: listen, so-and-so lent me money with interest; I ask you, extract it from him, it was fixed interest, extract it and return it to me. So the court discussed it and said: no, this is not fixed interest and we cannot extract it. So the man says to them—and all this he recounts to Rabbi Yechezkel Abramsky—so I said to them, “Write for me the basis on which you judged me.” What does that mean? It says in Jewish law that you can ask the judges to write the reasoning of the judgment. Why do you need that? Because with that you can go to someone else and petition or consult, if you think this isn’t correct. If they don’t write the reasons, you have no way to deal with it. They write the reasons, and then you can try to appeal or bring other opinions or something like that. Straightforwardly there isn’t really… appeals are a complicated matter. This issue of appeals came up with the establishment of the Chief Rabbinate. By the way, the fact that there is today a Great Rabbinical Court of the Chief Rabbinate is because the British forced it on us. Lord Bentwich. Right, all the rabbis objected because they said there is no such thing as an appeal in Jewish law. Now it’s not completely accurate that there is no such thing as an appeal, but never mind. In any case, the point is that the court says to him… so he says, “Write for me the basis on which you judged me.” They don’t want to write it for you. They don’t want to. He goes to Rabbi Yechezkel Abramsky and says: listen, this is what happened. In my opinion this was fixed interest, but even if not, at least they are obligated to write for me the basis on which they judged me. They didn’t write it for me, and I can’t even tell you their reasoning. And then he got a third slap, because Rabbi Yechezkel Abramsky told him they were right. Not right on the issue of whether it was fixed interest, but on the fact that they did not write for you the basis on which they judged you. Why not? So he explains—he himself gives this example. He explains: the fact that fixed interest is extracted by judges is not like damages, where if you caused damage you must pay; I petitioned the religious court, and the court will compel the damager to pay me, to compensate me. “Fixed interest is extracted by judges” is under the principle of compelling observance of commandments. Since you are forbidden to take interest, the religious court will force you not to commit the prohibition of interest. But this is not on the basis of protecting someone’s violated rights. That is why it appears in Yoreh De’ah and not in Choshen Mishpat, interest. Because you do not have a right to receive back the interest. He has an obligation to return the interest to you, but you have no right. And then what happens when you come before the religious court and say, so-and-so lent me at interest—what is your status in court? You are not a litigant; you are a witness. A witness. You testify that there was an interest-bearing loan here. You are not the litigant claiming the money because the money is due to you. Nothing is due to you. True, once the court compels him to return the fixed interest, he does then return it to the borrower; he won’t throw it away. You gave it willingly; it wasn’t theft. Nothing is due to you. That money is his; it’s just forbidden for him to keep that money. So when the religious court compels him to return the fixed interest, that is on the basis of compelling observance of commandments, not because of protection of your rights. Okay? And therefore he says, regardless of whether this was fixed interest or not—but even if it was fixed interest—they do not need to write for you the basis on which they judged you, because they did not judge you. You are not the litigant who received this judgment; you are a witness. You finished testifying—go home. If money arrives in the mail, say thank you; if no money arrives, then no money arrived. You are not a party to this matter, not a litigant. All right? Therefore they don’t have to write for you the basis on which they judged you, because when there are litigants and they received a judgment, they may ask for reasons. What about the reasons for the ruling? You judged me—give me reasons. Here they didn’t judge you; you are a witness. You are not a litigant. So they don’t have to write for you the basis on which they judged you. This is a nice demonstration of the meaning of the fact that interest belongs to Yoreh De’ah and not to Choshen Mishpat. Okay? Because in fact the basis of Choshen Mishpat is obligations whose basis lies in the rights of the other. That is the definition of Choshen Mishpat. Now this basically says the following about rights-talk and obligations-talk. So in Jewish law there is a discourse of rights—it’s called Choshen Mishpat. Choshen Mishpat deals with rights that we have, and of course corresponding to every such right there is an obligation on the other side, and first and foremost it deals with rights. But in Jewish law there is also a discourse of obligations that is not accompanied by a discourse of rights—it’s called Yoreh De’ah. Right, and that does not exist in ordinary legal systems, only in Jewish law. Ordinary legal systems—yes exactly—ordinary legal systems are relations between different entities: if this one has a right, that one has an obligation, and vice versa. In Jewish law there are also other things, but that doesn’t mean all of Jewish law is different. Choshen Mishpat is the legal part of Jewish law; law by virtue of being law is relations between two people where your right and my obligation stand opposite one another. That is the definition of a legal realm. The legal part of Jewish law has legal characteristics. What happens in other legal systems is that those legal systems are only legal systems. There is no halakhic part there that is non-legal. Legal systems by definition are systems dealing with law. In Jewish law there are laws that are not legal. No, that’s between the state and its citizens, no matter; certainly, clearly. So a person’s right vis-à-vis the state corresponds to the state’s obligation, obviously. Therefore if the state doesn’t pay me, I can take it to court. No, but here too there are two parties; they are not always private individuals, but that doesn’t matter. It can also be a right of a person against a community, or a right of a person against some institutional entity. Okay? So that is basically the definition of Choshen Mishpat, and through this I introduced the concept of a right. Let’s go back for a moment to Rashi. What does Rashi tell us in the chapter HaKones? That a person may not save himself with another person’s property. The medieval authorities (Rishonim) ask him: but there are only three cardinal sins—idolatry, forbidden sexual relations, and murder. Where do we find that theft or damage is among the three cardinal sins that override danger to life? In just a second—what? The commandment of charity is between person and person, not between person and God. Wait, that’s exactly it; these are slightly different definitions. The commandment of charity is between person and person, not between person and God, but it is a commandment between person and person, not an obligation toward the other person. Commandments between person and person are commandments; Yoreh De’ah is full of commandments between person and person: charity, honoring parents, honoring one’s rabbi, all sorts of things. But these are not rights of the other person, and therefore they belong in Yoreh De’ah, not Choshen Mishpat. What I want to claim is the following claim. Maybe I’ll add another introduction first. Rabbi Shimon Shkop in Shaarei Yosher, in Gate 5, argues as follows. He asks, and brings the difficulty of the Maharai Basan. The Maharai Basan asks: we know the rule is “the burden of proof is on the one who seeks to extract from another.” If someone sues me for money and I am in possession of the money, the burden of proof is on him. If he brings no proof, he won’t get the money. Okay? So asks the Maharai Basan: why? After all, there is a doubt here regarding the prohibition of theft. We don’t know who is right, correct? So I am in doubt about the prohibition of theft. If they leave the money with me because he brought no proof, there is a possibility that I am violating the prohibition of theft. In a doubt concerning a prohibition, one should be stringent. One should avoid the prohibition. Why shouldn’t I pay? Usually this is not a question, because in a normal claim I’m not in doubt; the court is in doubt. I claim that the truth is with me. Why can you compel me to be doubtful? I’m telling you the truth is with me; the court is doubtful. Why should I care? And there is a case where this is indeed problematic: a case where the claim is asserted definitely and the defense is “maybe.” “Definite and maybe” is a dispute among the Amoraim, and in practice we rule that “definite and maybe”—the definite claim does not prevail. The definite claim does not prevail. If there is no current possessor, that’s something else. If there is no possessor, then definite and maybe—the definite claim prevails. But if the definite claimant sues me and I… Let’s say someone comes and sues me: you borrowed money from me. And I say: you know what, I don’t remember. Maybe. He won’t get the money. Definite and maybe—the definite claim does not prevail, because I am in possession. And you extract from a possessor only with proof. You can’t extract from a possessor with claims; you need proof. A claim is not enough. Okay? If the money is floating in the river and I am not in possession and the whole question is who owns it, then definite and maybe—the definite claim prevails. But not to extract from a possessor. Now let’s think about such a situation. Someone sues me and I answer “maybe.” So they say the definite claim does not prevail; the money stays with me. Here I too am in doubt, not only the judges. So I myself should be concerned about the prohibition of theft. Will you say I can’t pay him because then on his side there would be a doubt about theft? Not true—he claims definitely. He claims definitely, meaning he knows this money is his; he is not in doubt. I am in doubt. So why don’t we say: Torah-level doubt—be stringent. Return the money to him so as not to stumble in the prohibition of theft. On the other level, the monetary level, the burden of proof is on the extractor. On that level, let him return the money—on whatever level he wants—just return the money. So Rabbi Shimon… he attributes it to Kovetz HaSafekot, but not… this is what he claims. He claims that the prohibition of theft differs from all other Torah prohibitions. It differs from all other Torah prohibitions. Why? The Torah says, “You shall not steal.” What does that mean? Don’t take money belonging to someone else. But where does the Torah determine which property belongs to whom? In the laws of acquisition, yes, the laws of ownership. How is ownership transferred? How does one become an owner? Where does the Torah regulate this? Nowhere. Tractate Bava Batra is famously known as the tractate without verses. It deals with acquisitions, and with no verses. Here and there some acquisitions have a Torah source, but generally acquisitions are… apparently there’s no electricity here. Okay, in any case, Rabbi Shimon Shkop claims that the prohibition of theft differs from all other Torah prohibitions. Why? Because when the Torah says “you shall not steal,” it assumes in the background that there are already laws of acquisition. In other words, it is already known who owns what, and now after that is known the Torah says to me: you may not take something that belongs to someone else. So the laws of acquisition precede the prohibition of “you shall not steal.” Where do they come from? He claims they come from the pre-halakhic layer. He calls it “the laws of justice” or “the doctrine of justice.” It is some natural legal system that precedes the Torah’s command. That is what he claims. Therefore he says it is obvious that the prohibition “you shall not steal” did not invent the laws of acquisition. The laws of acquisition already existed. The prohibition “you shall not steal” is built on top of the laws of acquisition. After we define the laws of acquisition, the Torah comes and says: you may not harm someone else’s property rights. If you harmed them, there is a prohibition of “you shall not steal.” Okay? Just in passing I’ll add that often people tend… there was some argument here with Rabbi Berkovits. Often people think that when the Torah… he says that the legal system determines the laws of acquisition, so it determined that something specific is yours. Am I allowed to take it from you? Rabbi Berkovits argued yes. Only “you shall not steal” says it’s forbidden. That’s the Torah layer. But before “you shall not steal” came, only at the legal layer, it was established that it is yours. It was not established that I may not take something that isn’t mine; that determination is a halakhic determination. The determination of acquisition law is a definitional determination, but it has no normative implications, yes? It doesn’t say whether something is forbidden or permitted. But that is not correct. Rabbi Shimon Shkop claims there is also a prohibition on taking. Not only is it yours, but because it is yours it is also forbidden to take it. How do I know that? Because in the second chapter of Gate 5, after he established this foundation, he says: perhaps you will say, why do I need to obey all these legal rules? After all, the Torah did not command them. Why do I need to obey all this? And then he answers like a good Jew—he answers a question with a question. He says: why do I need to obey what the Torah did command? Before you ask me why obey what the Torah did not command, explain to me why I need to obey what the Torah did command. By reason: if the Holy One, blessed be He, commands me, I should obey. Fine—then the very same logic can also obligate other things, and reason also says one should obey the laws of justice. Now you understand that if the laws of justice were only definitions of what belongs to whom, but not a prohibition against taking it, then Rabbi Shimon Shkop’s question has no place. In what way do I obey them? I don’t obey them at all. It’s yours and I can take it—that means there is no element of obedience to a legal system. The legal system merely determines; obedience begins only after “you shall not steal” arrives. So the obedience is basically to Jewish law, not to the legal system. So what is Rabbi Shimon Shkop’s question? Clearly Rabbi Shimon Shkop understands that within the legal system there is also a prohibition against taking; it is not merely a factual determination that this money belongs to you. Okay, you can say it amounts to the same thing. So the claim is that if it is yours, I may not take it. Okay, that is basically the claim. Now let’s see why indeed I may not take it. The claim is this. Your right to the money is a right established by the doctrine of justice. My prohibition—or obligation—not to violate that right has a legal layer and also a halakhic layer of “you shall not steal.” But the right itself is rooted in the legal layer. So Rabbi Shimon Shkop says: if we return to the Maharai Basan’s question—why in a case of definite and maybe don’t I have to be stringent, since I am in doubt about the prohibition of theft? The answer is that once on the legal level the rule is “the burden of proof is on the one who seeks to extract from another,” then on the legal level they tell me: this money is yours, you may keep it. Right? Once legally it is mine, then there is also no prohibition of “you shall not steal,” because “you shall not steal” merely comes to say that if you took something that is not yours on the legal level, you have also violated the prohibition of “you shall not steal.” But if on the legal level it was decided that it is mine, then what’s the problem? I may keep it, and I also won’t violate “you shall not steal.” The prohibition “you shall not steal” rides on top of the legal determination, and therefore once legally we decided that I may keep the money with me, then the prohibition “you shall not steal” will also not exist. So there is no doubt about a prohibition here. If I claim “maybe,” then legally they still tell me: you may keep the money. Once legally I may keep the money, then there is also no prohibition of “you shall not steal” here. That is Rabbi Shimon Shkop’s claim. Let’s return to Rashi. Why does Rashi say there is “be killed rather than transgress” regarding theft, or damage? There are only three cardinal sins and theft is not one of them. My claim is that the reason I am forbidden to take your money is not because of the prohibition of “you shall not steal.” The prohibition of “you shall not steal” is because I am forbidden to take your money. It works the other way around. I am forbidden to take your money because you have a right to your property. Now, when we are in a situation of danger to life, we say: the prohibition of “you shall not steal” is set aside in the face of danger to life; it is not one of the three cardinal sins. Right? If I take your money or burn your stack, I have not violated the prohibition of “you shall not steal.” It is set aside; it is danger to life. But where did your right disappear? The stack is still yours. My danger to life does not remove your rights. At most it can remove my obligations, because I am in danger to life; that overrides my obligations. But how does my danger to life affect your rights? You have rights over the property. Therefore I cannot take it, because it is your right. You ask me: but there are only three cardinal sins. Correct. “You shall not steal” is not one of the three cardinal sins. If I take this money I have not violated “you shall not steal.” I have violated the legal layer. I took something that is not mine—not because of “you shall not steal”; “you shall not steal” has been set aside. Understand: this is not because of the severity of the prohibition compared to other prohibitions, but because I am not the one who can decide what to do with your money. Your money is your right, and concerning your rights only you decide. I used to call this territorial considerations. Regarding what belongs to your territory, only you determine. If I want to decide something about your property, I cannot—not because it is terribly severe, but because it is not in the territory over which I have authority to decide. No, not even taking on condition of paying. In the end I took something that is yours, so what if afterward I want to pay? Exactly. Right. A person’s home is his fortress. Exactly. You may not approach—even though, as the Rashba says, I have an obligation to give the money to save you. I must. Right? And you would not violate “you shall not steal” if you took it, because it is set aside by danger to life. Even so, if I don’t agree, you may not take it. Yes. But you cannot take it. You cannot take it because you have no permission to make decisions about something that is in my territory. Not because it’s severe, but because of the type of problem. The type of problem is a territorial problem. That is the point. I’ll give you an example. I have some friend in Bnei Brak, a great joker, and once we were sitting by a table and he saw someone reading a book. So he said to him: listen, I’ve been looking for that book for a long time. No, there in the study hall. So he was sitting by the table reading the book. He says: look, I’ve been looking for that book for a long time. I have two options: either take the book from you by force and violate “you shall not steal,” or leave the book with you and violate “you shall not covet.” Since in any case I’m violating a prohibition, then at least I’ll take the book. Yes. Now clearly that’s not correct, and he knew it wasn’t correct. But even suppose it were correct—why is that story funny? Because on the face of it, it sounds right. There’s a prohibition in any case, so at least let the book be with me. Your decision is very reasonable—but you cannot make decisions about my book. Not because the decision is wrong; it is right. Danger to life overrides theft. The decision is halakhically correct. But even correct decisions you cannot make in my territory. In my territory, only I make decisions. That’s all. Not because you are wrong. For example, when you are in danger to life, then of course you are right. I am even obligated to give you my property so that you can be saved. Not only are you right; I am wrong. Everything is true. But I have a right to be wrong. This is my territory. I make the decisions. Another example: the Talmud in Sanhedrin says that if Zimri had turned around and killed Pinchas, he would not be executed for it. Yes, Pinchas is standing to kill Zimri, and Zimri could have turned around and shot him in the head. That is what the Talmud says, on the law of a pursuer. So the later authorities ask—Kli Chemdah at the end of parashat Balak brings this—they ask: the rule in the law of a pursuer is that if you can save the victim by injuring one of the pursuer’s limbs, it is forbidden to kill him. Let’s say I can shoot the pursuer in the leg, and that way I save the pursued person and he won’t be able to kill him. Then I may not kill the pursuer; I have to shoot him in the leg. Okay? Now here, Zimri could have saved himself with one of his limbs, as it were; he could have said to Pinchas, wait, wait, wait, I am stopping the sin. If he had said, I am stopping the sin, Pinchas would not have killed him. So in effect he could save himself without killing Pinchas. So what gives him the permission to kill Pinchas under the law of a pursuer? Kli Chemdah gives a wonderful answer. Again: what is the permission for Zimri to kill Pinchas? He could have saved himself without killing him; he could have said, listen, I’m stopping the sin. If you have a way to save yourself without killing the pursuer, you have no permission to kill the pursuer. So why was Zimri allowed to kill Pinchas? Kli Chemdah says: because I want to sin. What business is it of yours if I sin? I owe you nothing. I want to sin. Now you are threatening to kill me because of that? Then I will kill you under the law of a pursuer. You want me to stop sinning only so that I won’t kill you? I don’t owe you that. I want to sin. Notice: not that it is okay to sin—but you cannot demand that I stop sinning. Think of a more moderate case. Someone threatens me with a gun and says: give me a shekel, and if not I’ll kill you. Am I allowed to kill him? Not just give him the shekel and end the story, right? Am I allowed to kill him? Yes, certainly. He’s threatening me. I don’t owe him that shekel. He wants to exploit my righteousness—that I can save him without killing him, and therefore I won’t kill him—and on that he builds the extortion. He is extorting the shekel from me by means of my righteousness. In such a situation Jewish law freezes itself. Don’t be righteous. Shoot him in the head. Ah? I don’t know exactly what their practical instructions are, but in principle, don’t be righteous. No one is supposed to exploit your being righteous in order to get things out of you, even though those things in themselves would not justify killing. Give him the shekel—it’s obviously better than killing someone, right? But I don’t owe him the shekel. Okay? What does this really mean? It means that the correct decision, ostensibly, is to give him the shekel in terms of halakhic calculus—the shekel or killing, right? But in my territory, you cannot dictate to me what the decision is, whether I will give you a shekel or not. In the territory, only I determine whether I’ll give you a shekel. You cannot determine anything. Okay? That is basically the point. Now if that is really so, then that is basically what Rashi says. Rashi says: look, your decision to burn the stacks in order to save yourself is the correct decision in terms of halakhic reasoning. But as for my stacks, you do not make decisions—even correct decisions. About my stacks, only I make decisions. And it may be that for that decision I will be judged in the Heavenly court, because I should have invested that money to save you and I didn’t. I am not okay, as the Rashba says, yes? After all, I am obligated to give you the money to save you. Right? So I will be judged in the Heavenly court. And Zimri too will be judged in the Heavenly court for what he did, but that does not justify your pursuing me and killing me and saying you are not deemed a pursuer. No—I may kill you in self-defense, and afterward in the Heavenly court I will be judged for adultery, but not for murder, because you have the status of a pursuer. So what was the Talmud’s question really? What was his question? That was the question. Is “you shall not steal” set aside in the face of danger to life, like all prohibitions, or is there some pre-halakhic dimension here, a legal dimension, such that even though “you shall not steal” is set aside, the rights of the owners of the barley remain in force and I cannot touch it? And the answer was: the second is correct. Wait, what halakhic prohibition is there in this? There may be a moral prohibition, but not a halakhic prohibition. What? Any damage done to another person is forbidden. I’m speaking about a prohibition like every other prohibition that gets set aside. Fine, but still you committed a transgression. You are forbidden to do it. The question of what you will actually do is another question. Your obligation is not to do it. You can make a cold calculation and say: okay, in order to stay alive I will commit a transgression. Fine, you’ll answer for it in the Heavenly court. It’s like—you know—the halakhah says that on the Sabbath, if a fire breaks out, one may not extinguish it, even if my entire house is going up in flames. More than that, extinguishing the fire is a rabbinic prohibition, not a Torah one, because this is extinguishing in a way where I do not need the coals. If I need the coals, it is a labor needed for its own purpose. If I don’t need the coals, it is a labor not needed for its own purpose, a rabbinic prohibition. I am supposed to lose all my property on earth in order not to violate a rabbinic prohibition. Even more, they say I may not even remove property from the house, which is not even a rabbinic prohibition. I may not, lest I come to extinguish the fire. Because in my panic over my money, I might come to extinguish it. And now I ask myself what I would do in such a situation, practically. I am in a situation where all my earthly possessions, including my house, are going up in flames. By violating a rabbinic prohibition, I can extinguish the fire. I know—it’s a rabbinic prohibition, and they tell me not to extinguish it. Fine, I’ll extinguish it, I’ll remain with all my earthly property, and I’ll have one more rabbinic prohibition and have to answer for it in the Heavenly court. I definitely assume many people would make that calculation. Maybe so, but still there is a prohibition here. To steal in order to pay is also a prohibition. You may not steal in order to pay. I’ll take something of yours—yes, I’ll pay you later. There is no such thing. I cannot steal in order to pay. So the claim is: I’m not entering now into the question of what a person would do in such a situation; I’m asking what is permitted and what is forbidden. There is a Tosafot in Shabbat on page 4. Tosafot speaks there about someone who stuck bread to the inside of an oven. Someone put bread into the oven on the Sabbath, and now the bread will bake during the Sabbath. Once it bakes, he becomes liable to stoning under the law of baking. Now he can remove the bread before it bakes, and then he has not violated the labor of baking or cooking, okay? And he is saved from liability to stoning. It says that it is forbidden; removing the bread is forbidden. So Tosafot says this cannot be, because clearly the person will not listen to us. Meaning, he will violate a rabbinic prohibition. Therefore Tosafot concludes from this that it cannot be that they prohibited it. And here we see not like that. Here we see: no, fine, make whatever calculation you’ll make, but that has nothing to do with the question of whether it is forbidden or permitted. The determination is that it is forbidden. The fact that in practice you won’t obey that—then you won’t obey. Fine. What did you want to ask? I wanted to ask whether it is even a rabbinic prohibition to save oneself with another person’s property. Where does it appear in the Talmud as a rabbinic prohibition? No, it’s not a rabbinic prohibition. Rashi said—fine. So he said theft. It is not a rabbinic prohibition. Not a rabbinic prohibition at all. It is a Torah prohibition of theft. Please. It is a Torah prohibition of theft. A Torah prohibition of theft to save oneself with another person’s property? Yes. Theft—taking money that isn’t yours. So the claim—what I really want to claim—is that Rashi’s view that a person may not save himself with another person’s property stems from the conception of the prohibition of theft. My prohibition is set aside because of my danger to life, but your right is not affected by the fact that I am in danger to life. How does my danger to life remove your rights? And as long as you have a right, I may not take from you even apart from the prohibition of “you shall not steal,” as we saw with Rabbi Shimon Shkop. Because it is yours, not because of “you shall not steal.” “You shall not steal” is set aside. I am still forbidden to take. That is Rashi’s claim. I don’t know if “beyond the letter of the law” is the right phrase, because this is the law. Only it is not Torah law but a law that precedes the Torah. No, this is not piety; it is a full obligation. But it is a non-halakhic obligation. It is a full obligation, but a non-halakhic one. It is not exactly beyond the letter of the law; it is something a bit different. “Beyond the letter of the law” is not an obligation. That is morality; there is merit in doing it. Here it is not a merit—you must. Whoever does not do it is a wrongdoer. But not a halakhic wrongdoer, rather a meta-halakhic wrongdoer. Okay? So this is basically the claim in Rashi’s view. That is one side. There is another side to the coin. The other side of the coin is that the laws of monetary matters have—that is, up to now we saw that monetary law is the most severe thing there is. Even dying does not remove the monetary prohibition. You have to die and not violate the monetary prohibition. On the other hand, there are aspects in which monetary law is the lightest thing in the Torah. For example, the Mishnah in Bava Metzia on page 94 says that an unpaid guardian may stipulate to be like a paid guardian. The Torah establishes the laws of bailees. And we stipulate between us that although you are an unpaid guardian you will be liable for theft and loss, and although you are a paid guardian you will be exempt from theft and loss. The Mishnah says this is possible. Not only is it possible, but all the medieval authorities (Rishonim) say that not only does it take effect after the fact; it is even permitted ab initio to do this. No problem—do it ab initio. Now you cannot stipulate regarding the prohibition of pork. I’ll stipulate that it’s permitted to eat pork. There’s no such thing, right? Only in monetary law can you stipulate. Okay? In monetary law you can stipulate and then there will be no prohibition. In monetary law custom also determines. The custom of the place. Everything follows the custom of the place—the opening Mishnah in Bava Batra. With pork there is no custom of the place. If the custom of the place is to eat pork, does that make it permitted to eat pork? No. But in monetary law, yes. The law of the kingdom is law. In monetary law, the law of the kingdom is law. But the king cannot decide that it is permitted to eat pork. Nor that one need not honor parents. Nor that either. Only in monetary law. Yes, this is like the Talmud says: in principle, a person cannot stipulate against what is written in the Torah. You cannot make a stipulation against a prohibition, against what is written in the Torah. But in a matter of money—this is a dispute between Rabbi Meir and Rabbi Yehudah—we rule in practice like Rabbi Yehudah that in a monetary matter, his stipulation stands. You may stipulate. For example, one who betroths a woman on condition that he has no obligation toward her of food, clothing, and conjugal rights—leave conjugal rights aside for now, but food and clothing—that is valid. Rabbi Meir and Rabbi Yehudah disagree about this. Rabbi Meir says this is stipulating against what is written in the Torah. The Torah says, “He shall not diminish her food, her clothing, and her conjugal rights.” Rabbi Yehudah says that in monetary matters I may stipulate against what is written in the Torah. Only in monetary matters. No, no, just to stipulate—it doesn’t remove anything. You can stipulate against what is written in the Torah. I’ll get to that in a second. In fact it’s quite simple because these are rights. Wait. It’s quite simple because these are rights. Could… I’ll get to that in a moment. Basically the claim is that there is something in monetary law that is more flexible and lighter than any other part of Jewish law. You can stipulate about it, the custom of the place can change it, the law of the kingdom can change it—only in monetary law. In all other things, no. So on the one hand, violating monetary law is the most rigid thing there is—down to life itself. You don’t violate it at any price. On the other hand, it is the most flexible thing there is. Most flexible—one can stipulate, can change, can—everything depends on what people decide. How do we reconcile these two sides? I’ll say even more than that. What Rashi says about theft or damage, in Binyan Tzion—that is the Arukh LaNer, in the responsa of the Arukh LaNer, Binyan Tzion—there is a series of several responsa there where he expands this to all prohibitions between person and person. “Be killed rather than transgress.” For example, the Talmud says, “It is preferable for a person to throw himself into a fiery furnace rather than whiten his fellow’s face in public,” meaning humiliate him publicly. Tosafot there says that from here we see that humiliation is “be killed rather than transgress.” Now on the face of it, I think Tosafot’s statement is far from necessary, because straightforwardly this seems to be an aggadic statement, not a halakhic one. Meaning, it is very severe, “better that you throw yourself into a fiery furnace,” but not that this is literally what you must do. Tosafot understands it as a fully halakhic statement, and he links it to the fact that when one humiliates someone, the blood drains from his face and it is something like death. Fine, this sounds like a nice sermon for a wedding celebration. To derive “be killed rather than transgress” from that sounds strange. Binyan Tzion claims it is the same principle as Rashi. Since you have a right to your dignity, I cannot violate your dignity even if I die. Not because violating your dignity is especially severe, but because it is your territory and regarding that only you make decisions, not I. Exactly like what Rashi says about theft. Now clearly when he says “be killed rather than transgress” regarding obligations between people, he does not mean “be killed rather than transgress” for charity. Giving charity to the poor is not “be killed rather than transgress.” He means rights of another person, not obligations toward another person. In order not to violate your fellow’s rights, even if you die you may not violate his rights. That is what he means. So what does this really say? I think I presented a contradiction here. On the one hand, monetary law is the most rigid thing there is, to the point of life itself. You do not violate it at any price. On the other hand, it is the most flexible thing there is. You can stipulate about it, custom, the law of the kingdom—everything is fine. The secret of the matter—there is no contradiction here at all—and the secret of the matter is that in monetary law, I said that in monetary law of Choshen Mishpat my obligation is rooted in your right. What does it mean that you have a right to something? Take a guardian, for example. I deposited property with the guardian and let’s say it was lost. A paid guardian is liable for loss. I have the right to sue him for money over the loss. Now if we agree that he will be a paid guardian but exempt from loss, there is no problem whatsoever. Why? Because if it is my right, I can waive that right, right? The Torah gives me a right; the right is mine. If I want, I’ll collect it. If I don’t want to, I want to waive the right, to give you a gift—what, am I not allowed to give you a gift? Why not? What’s the problem? Because once it is defined as a right, a person can automatically waive it. In other words, it works like this. If I did not waive the right, then you cannot violate it even if you die, because decisions regarding my rights are made only by me. But if I want to waive the right, there is no problem at all. So the flexibility is on the side of the right-holder; the rigidity is on the side of someone else who is not the right-holder. He cannot violate the right in any way, but I—I can waive my rights if I want. Therefore when, for example, we stipulate that a paid guardian will be like an unpaid guardian, that he won’t be liable for theft and loss—why can he do that? Because I agreed. Only if the owner agrees. Obviously. You cannot stipulate this without my agreement. When we made the guardianship contract and you stipulated and I consented, all is well because I agreed. But that is not because you stipulated; it is because I agree. Only because of that. Now what happens? Why is this not called stipulating against what is written in the Torah? After all, the Torah said that a paid guardian is liable for theft and loss, and now we want to exempt him. The answer is: the Torah did not say that a paid guardian must pay. The Torah said that the paid guardian is obligated to pay because I have a right to receive. And that is true—that can never be changed. Clearly I have a right to receive and you have an obligation to pay. But I can always say: fine, and I will give it back to you as a gift, I waive the right. This is not called stipulating against what is written in the Torah. You paid me and I gave it back to you as a gift—what’s the problem? Am I forbidden to give you gifts? One cannot stipulate against what is written in the Torah, even in monetary matters. What it means is that since in monetary matters the foundation is your right, and if it is only a right, then a right can be waived. You can waive it and say: I don’t want it. That is not called going against the Torah. The Torah did not say that you will receive it. The Torah said you have the right to receive it. And that is true—you have a right to receive it. You can only waive it and say: okay, I relinquish my right, no need. Take it as a gift. Therefore—what? The other side—that a paid guardian is allowed to say that he waives that Torah right? I didn’t understand the question. Before, you asked whether a person can waive those rights that the Torah imposes. You mean Rabbi Meir and Rabbi Yehudah. No, no, no. Yes, Rabbi Meir apparently understands that you cannot waive those rights because the Torah places an obligation on you and you must fulfill that obligation. It’s not only my right, it’s your obligation. It may be that he doesn’t even distinguish between Choshen Mishpat and Yoreh De’ah. But in practice we rule like Rabbi Yehudah. And Rabbi Yehudah said that one may stipulate regarding money. Yes. Look, for example, I’ll give you a case. But there are certain rights one cannot waive. For example, a rabbi who waives his honor—his honor is not considered waived in all cases, and things like that? Because it is not a right. He cannot waive it because it is not his right. If it is his right, then by definition he can waive it. If it is not a right but something what in legal language is called cogent, something that cannot be waived, then that means it is not a right. It is an obligation that the Holy One, blessed be He, imposes, and then I cannot waive it. It is the honor of the Torah; it is not my personal honor. So that means it is not a right but something else? An obligation. An obligation without a right. That is Yoreh De’ah, not Choshen Mishpat. The honor of one’s rabbi is Yoreh De’ah, not Choshen Mishpat. So let me ask you a question to sharpen the point a bit more. Look, as I said earlier, in monetary law the law of the kingdom is law. So if you ask now, for example, in the laws of bailees, what actually determines things is not what is written in Choshen Mishpat. What determines things is what is written in the Israeli lawbook. That is what determines halakhically. Jewish law says that what determines it is the Israeli lawbook, not what is written in Choshen Mishpat. Why? What? Because everything follows the custom of the place and the law of the kingdom, and so on. In the end, that is what determines things in monetary law. So basically everything we study in yeshiva or in the study hall in the laws of bailees is dead letter. It’s totally irrelevant. By contrast, when we study law, we are studying the binding law. So perhaps now we should make the blessing over Torah study on legal studies, not on Choshen Mishpat? After all, if the Torah says we have to learn the law of the state… I didn’t understand. Did they copy the laws of bailees over? No, no, no. They did not copy them. Not at all. Maybe legal studies are only preparation for a commandment and not the commandment itself? Why? Because he studies in order to know how to rule, but that is not the issue. This is studying the law—what do you mean? Studying ordinary halakhah too is studying in order to know how I rule. It is also more than that. Why? I don’t know, that’s the feeling. So I want to say no—it’s simply not what I said before. When, for example, Israeli law says that a paid guardian is exempt for theft and loss… from loss; from theft I doubt he would be exempt. But no, theft—sorry—not that he stole, but that someone else stole—yes, he is exempt from theft and loss. Suppose so. Okay? What does that mean? Why is it valid? It does not change Torah law. Torah law says that he is liable. Israeli law merely obligates us to waive our rights. So obviously studying Israeli law is not studying Torah. Torah is what is truly due to me. And just as I do not need to study Torah when you waive something—when you as a private person waive, you deposited property and you waive the guardian’s liability for theft and loss—when I study your psychology, have I studied Torah? Yet that is what will determine the halakhah, right? And that is not Torah. Torah is what the principled rights are that you have. The principled rights that a depositor has against a paid guardian are that he is entitled to payment for theft and loss. That is Torah, and that is what one must study, and it is true today as well. Only in addition to the Torah’s determination, there is also a waiver. That waiver is unrelated to Torah; people decided to waive it. To study what they decided to waive or not waive is not Torah study. It is simply understanding what the situation is, that’s all. Therefore studying law is not Torah study. When I study law, I am merely studying what people waived and what they did not waive. That’s all. That is not Torah study. Didn’t hear. Torah study is to learn the will of the Holy One, blessed be He. When I study what people waived, that is not Torah study. Even if it appears inside a page of Talmud. What is Torah study? The understanding that in every such human waiver there is divine wisdom folded in. Or that we have reason, and reason is divine logic. From where do we know reason? Reason itself is Torah. That is Torah study. If it is merely the desires of people—what they waived and what they did not waive—that is not Torah study; that is knowledge of reality. That is the difference between law and Torah. The jurist studies the decisions of human beings. The student of Torah studies the divine logic folded into that reality. That is a fundamental difference. That is how Rabbi Kook explains it. Therefore he says that once you study Torah without the soul of Torah, which is the divine perspective, then Torah turns into something secular. It turns into legal studies. And from that all kinds of malfunctions emerge.