The Receiver Chapter – Lesson 1

Table of Contents

• The place of the chapter HaKones in tractate Bava Kamma and the study plan
• The Torah’s division and Maimonides’ division: a person who causes damage and property that causes damage
• Primary categories of damages, subcategories, and the basic map of the primary categories
• The unique leniencies and stringencies of each primary category
• Half-damages for an innocuous ox’s goring: compensation or fine, and the presumption of guarding
• Essential definitions of the primary categories: fire, pit, ox, and horn-tooth-foot
• The three aspects of damages: payment, prohibition, and guarding
• The duty to guard: *Yoreh De’ah* versus *Choshen Mishpat* and the legal cause of action
• Tur, Shulchan Arukh, and Maimonides: formulations of the prohibition and liability regarding damaging property
• A damages claim and its dependence on an injured litigant
• Correlation versus causation between prohibition and liability to pay

Summary

General overview

The text presents the chapter HaKones (chapter six in Bava Kamma) as a transitional chapter that wraps up the first part of the tractate, the part dealing with the primary categories of damages. It describes its main contents: damages caused while something is in a guardian’s domain or by a robber, the laws of indirect causation and guarding against damage, and finally damages caused by fire. It builds a conceptual “map” of the Torah’s laws of damages and of Maimonides’ division between the laws of property damage and the laws of one who injures or damages, lays out the primary categories of damages and their subcategories, along with the leniencies and stringencies unique to each category, and concludes by presenting three aspects of the laws of damages: the obligation to pay, the prohibition against causing damage, and the duty to guard. From there it goes deeper into the dispute over how to understand the duty to guard: as a prohibitory obligation in the style of *Yoreh De’ah* or as a legal cause of action in the style of *Choshen Mishpat*, and compares the wording of the Tur, Shulchan Arukh, and Maimonides to show possible differences in the underlying assumption of liability in the laws of damages.

The place of the chapter HaKones in tractate Bava Kamma and the study plan

The chapter HaKones comes after fifty-something folios, and the section before it deals with the various primary categories of damages and their laws. HaKones still belongs to the first part, but more or less brings it to a close; after that the tractate moves on to other topics, like a person who causes damage, a robber, and the laws of multiple payment. At the beginning, the chapter includes damages caused in the domain of a guardian or by a robber, discussion of indirect causation and the laws of guarding against damages, and in its final section, damages caused by fire.

The text lays out a study plan in which two lectures are devoted to general background on property damage, the primary categories of damages, the duty to guard, and the obligation to pay; and in the third lecture they begin with the first Mishnah and the Talmudic passage that follows it. The focus is meant to be on the preparation sheet sent out for the first two lectures, and it notes that “running through the chapter” in advance will not necessarily help.

The Torah’s division and Maimonides’ division: a person who causes damage and property that causes damage

The verses in the Torah about damages focus on two kinds of harm: a person who causes damage and property that causes damage. In parallel, there is also a distinction on the side of the injured party, between damaged property and an injured person. Maimonides divides his laws into two groups: the laws of property damage, when a person’s property causes damage, and the laws of one who injures or damages, when the person himself causes damage. Within a person who causes damage, Maimonides distinguishes between one who injures, when a person harmed another person, and one who damages, when a person harmed an ox or property.

Primary categories of damages, subcategories, and the basic map of the primary categories

The text quotes Rashi on the first Mishnah in Bava Kamma, who defines a primary category of damage as a type of damager that is written in the Torah, and a subcategory as a damager similar to the primary category. It states that the conclusion of the discussion at the beginning of the tractate is that there is no difference between primary categories and subcategories, aside from half-damages for pebbles kicked up by an animal, and therefore the distinction has no practical significance for what follows. It notes that the basic primary categories for our purposes are ox, pit, fire, and person; and within ox are included horn, tooth, and foot. It mentions that there is a dispute over how to understand the count of “the four” in the first Mishnah, but says there is no need to get into that for the sake of the general map.

The unique leniencies and stringencies of each primary category

In the case of a person who causes damage, there is a stringency that a person is liable even if he acted under compulsion, because “a person is always forewarned.” And when a person injures another person, he is liable for four payments in addition to the actual damage: loss of work, humiliation, medical expenses, and pain. In the case of property that causes damage, the special laws are presented as leniencies: with fire there is an exemption for concealed items, so when a fire burned a stack and there were utensils inside it, they pay as though it were filled only with produce and disregard the concealed items. With a pit there is the exclusion, “an ox, but not a person; a donkey, but not utensils,” so if a person or utensils fell into the pit, one is exempt, with mention that Rabbi Yehuda disagrees. With an ox there is an exemption for tooth and foot in the public domain, and with horn there is payment of half-damages for the first three times and full damages from the fourth time onward.

Half-damages for an innocuous ox’s goring: compensation or fine, and the presumption of guarding

The text brings the dispute on folio 15 between Rav Pappa and Rav Huna the son of Rav Yehoshua over whether half-damages are compensation or a fine. According to the view that half-damages are compensation, “ordinary oxen are not presumed guarded,” and so in principle there is an obligation to pay; the Torah simply showed mercy and gave a “discount” for the first three times. According to the view that half-damages are a fine, “ordinary oxen are presumed guarded,” and strictly speaking there would have been reason to exempt; the liability is meant to encourage guarding, “so that he will guard his ox.” The text states that the Jewish law ruling is that half-damages are a fine.

Essential definitions of the primary categories: fire, pit, ox, and horn-tooth-foot

A person who causes damage is defined as damage that the person does by his own force, while property that causes damage is defined as damage caused by property for which the person is responsible, where he did not guard it properly. Fire is defined as damage in which the wind carries something and it causes harm. The text cites the Talmud on folio 6 that “his ember, his knife, and his load,” which are blown by an ordinary wind and cause damage while in motion, are subcategories of fire. A pit is defined as “an obstacle through my fault” in the public domain, and not necessarily “an obstacle that belongs to me,” because a pit in the public domain is not acquired as a private object, but the Torah treats it as being in the digger’s domain for purposes of liability.

The text explains that with a pit, the injured party comes to the damager, because the obstacle is static; with fire, the damager comes to the injured party by means of the wind; and with an ox, we are dealing with a living creature that goes and causes damage. Tooth is defined as damage the animal does for its own enjoyment, including eating or rubbing itself for pleasure; and foot as damage caused in the course of walking. Horn is described as having two characteristics: unusual damage, not in its normal manner, and intention to cause damage. The text says the relationship between those characteristics is a broad topic that is not resolved here, and illustrates that unusual damage, even if it involves pleasure, can still be considered horn.

The three aspects of damages: payment, prohibition, and guarding

The text distinguishes between the obligation to pay, which is written explicitly in the Torah, and the prohibition against causing damage, which has no simple source; and also between those and the duty to guard, which does have a source in “and its owner did not guard it,” but whose status requires clarification. It notes that in cases of indirect causation there may be a prohibition without liability to pay, and in other cases there may be liability to pay without a prohibition. It presents the duty to guard as a third point that can be understood in two ways: as a prohibitory obligation or as a legal obligation.

The duty to guard: *Yoreh De’ah* versus *Choshen Mishpat* and the legal cause of action

The text suggests that if the duty to guard is a prohibitory obligation, then even if no damage actually occurred, there is room to say that a person violated a prohibition by failing to guard. It suggests an alternative in which the duty to guard is a legal obligation of the *Choshen Mishpat* type, under which the owner of the property that may be harmed has the right to demand that the other person guard his property, and the failure to guard creates a legal cause of action in damages only once damage occurs. From there it develops a discussion of whether the cause of action in damages arises from negligence in guarding or from the mere fact that the damager is the defendant’s “property.” It notes that even if guarding is effective to exempt, there can still remain a conceptual difference between the two approaches.

The text criticizes later authorities who necessarily tie the prohibition against causing damage to the basis of monetary liability, and argues that one need not infer from the prohibition in the realm of *Yoreh De’ah* to the legal structure in the realm of *Choshen Mishpat*. It illustrates this by comparison to charity, where there is a religious obligation but no private cause of action, and sharpens the point that a legal proceeding requires an injured litigant.

Tur, Shulchan Arukh, and Maimonides: formulations of the prohibition and liability regarding damaging property

The Tur at the beginning of section 378 states that just as it is forbidden to steal or rob, so too it is forbidden to damage another person’s property. In that way, it sets theft and robbery as the source or basis for the prohibition against causing damage. The Shulchan Arukh in section 378 says, “It is forbidden to damage another person’s property,” and attaches to that the obligation to pay, “even though he derived no benefit,” in a way that emphasizes that payments for damage are not payments for benefit received.

In the Tur, in section 389, there appears an explicit analogy: just as it is forbidden for a person to cause damage, and if he did so he must pay, so too a person must guard his property so that it will not cause damage, and if it did so he must pay. The text suggests that this sounds as though the duty to guard is tied to the basis of liability. The Shulchan Arukh in section 389 omits the analogy and the wording “must guard,” and instead formulates it as: “Any living creature that is in a person’s domain and caused damage, the owners are liable to pay.” The text sees this as leaning toward imposing liability based on the mere fact that the thing is in his domain. Maimonides, at the beginning of the laws of property damage, opens similarly to the Shulchan Arukh but adds, “for their property caused damage,” and the text presents this as emphasizing that the liability stems from the damager belonging to the owner.

Maimonides, in chapter 5 of the laws of property damage, rules that if an animal broke through in order to graze, then even before it caused damage, its owners are warned; and if he did not guard it, the owner of the field may slaughter it with a valid ritual slaughter. He concludes: “because it is forbidden for a person to cause damage and then pay for what he damaged; even causing damage indirectly is forbidden.” The text reads this as an explicit appearance of the prohibition against causing damage, and even a prohibition against causing damage indirectly, while discussing whether the mention of the prohibition is meant to establish a right of prevention in advance or whether it is a separate prohibitory layer that does not necessarily overlap with the structure of monetary liability.

A damages claim and its dependence on an injured litigant

The text emphasizes that practical monetary liability depends on the existence of an injured party who stands as a litigant opposite the damager, even if he does not actually sue in a religious court. It raises an example from a midrash about Alexander in Africa, where two sides argue over who is entitled to a treasure found after the sale of a courtyard. It uses that to argue that where there is no plaintiff and defendant in the sense of a violated right, there is no *Choshen Mishpat* to decide the matter; and therefore “pious” solutions do not clarify the legal rule.

Correlation versus causation between prohibition and liability to pay

The text argues that even when a prohibition and an obligation to pay appear together, it does not follow that one is the cause of the other. It brings conceptual examples such as robbing a minor, where there is an obligation to return the object even though there is no prohibition, and a distinction from Tosafot in Bava Kamma folio 11 between the laws of ritual impurity and the prohibition to the husband. It concludes by stressing that correlation is not causation, and leaves the continuation of the analysis for the next introductory lecture, based on the preparation sheet that was sent out.

Okay, so we’re really dealing with the chapter HaKones, the sixth chapter in Bava Kamma. And this chapter of course comes only after quite a few pages, fifty-something pages. And the pages up to the chapter HaKones—and this really more or less splits the tractate in half, the chapter HaKones—deal with the various primary categories of damages and their laws. From the chapter HaKones onward it’s already a bit different. There’s a person who causes damage, there’s a robber, there are all kinds of things in Merubeh, and so on. There are various other topics. The chapter HaKones is something in the middle: it still belongs to the first part, but it basically wraps up that first part. Broadly speaking, what it contains is damages that are caused in the domain of a guardian or by a robber—that’s at the beginning. There are indirect damages, there are the laws of guarding against damage; I’ll still get into all of it, I’m just giving some kind of full picture. And then the last part of the chapter deals with fire damages. Okay? And that really concludes the first half of the tractate, which deals with the primary categories of damages. Right. So what I’m going to do, since we’re entering the sixth chapter, is devote, I assume, two classes to giving some general background on monetary damages in general, a bit about the primary categories of damages themselves—but really just very briefly—about monetary damages more generally, the duty to guard, the obligation to pay, and so on. And in the third class we’ll begin to enter into the chapter itself, starting from the first Mishnah, so anyone who wants to start running through the chapter—though from my perspective, by the way, it doesn’t matter all that much, running through the chapter won’t help all that much. But if someone wants to, you still have time. Meaning, you can focus on the prep sheet that I sent and work with it during the first two classes. Okay? In the third class—that’s the plan at the moment—I’ll already go into the first Mishnah and the Talmudic discussion that follows it at the beginning of the chapter. Okay, so I’m starting, as I said, with an introduction to damages.

All right, so there are various verses in the Torah about damages. Basically those verses speak about two types of harm: a person who causes damage, and property that causes damage. Now, also with regard to the object harmed—or the one that sustains the damage—we make a distinction between property that was damaged and a person who was damaged. Meaning, both from the side of the damager and from the side of the injured party. In Maimonides himself, Maimonides divides his laws into two groups of laws. There are the laws of monetary damages, and the laws of one who injures and one who damages. The laws of monetary damages are when my property causes damage—not when the property is damaged, but when property causes damage. The laws of one who injures and one who damages are when the person himself—not his property, but the person himself—causes damage. All right? What’s the difference between “one who injures” and “one who damages” within the category of a person who causes damage? “One who injures” is when the person harmed another person, and “one who damages” is when the person harmed an ox or property. Okay? And all of that is under the laws of one who injures and one who damages, meaning a person who causes damage. In the laws of monetary damages, it’s when property causes damage. When property causes damage to a person, there too there are here and there some somewhat different laws—there’s ransom payment and such, depending on what type of damage and when—but maybe I’ve touched on that a bit before; we won’t get into the details. Broadly speaking, those are the two categories.

Now the laws of damages themselves, what appears in the Torah, appear in the Torah basically—as the Mishnah at the beginning of Bava Kamma summarizes—as a certain list of primary categories of damages. And Rashi there, on the first Mishnah in Bava Kamma, defines: a primary category of damage is a type of damager that is written in the Torah. That’s the definition of a principal category. A derivative is a damager that resembles a principal category that appears in the Torah. Okay? The distinction between a principal category and a derivative is whether it is written in the Torah or not written in the Torah. For our purposes the difference between a principal category and a derivative is not important, because in the end, the conclusion—the opening pages of Bava Kamma deal with the question whether there is a difference between principal categories and derivatives—the conclusion is that there isn’t, except for half-damages of pebbles. But aside from that there is no difference. The derivatives are equivalent to the principal category; whatever applies in the principal category applies in the derivative. So from my perspective, derivatives of fire are fire, derivatives of pit are pit, derivatives of horn are horn—there’s no difference at all. We’re not going to make any distinction between them. Unless for some reason we get to pebbles somewhere, but aside from that it will have no significance, so for now I’m ignoring the distinctions between principal categories and derivatives.

What principal categories are there? The principal categories that matter for us—and again, there are different baraitot there in the first chapter of Bava Kamma, those of Rabbi Chiyya and Rabbi Oshaya, with thirteen categories and twenty-four categories—those are discussions that matter less for us. What matters for us are the basic categories counted in the first Mishnah. And even there there is a dispute how to understand what is written in that first Mishnah, but the categories are as follows: there is ox, there is pit, there is fire, and there is person. Okay? Now within ox there are three, or four if you want. You can say three: horn, tooth, and foot. Those three are included under ox. I’m not getting into the question of what the four are that the first Mishnah in Bava Kamma counts, because that’s a dispute among the Amoraim, and without entering all the details, broadly speaking for us it isn’t important. You just need to know the general map. The general map is that there is a person who causes damage, and there is property that causes damage. A person who causes damage falls under the laws of one who injures and one who damages. Property that causes damage falls under the laws of monetary damages. Under a person who causes damage, that’s simply a person. Under property that causes damage there are three basic principal categories: ox, pit, and fire. Fire is somewhat in doubt—part property-caused damage, part person-caused damage—we won’t get into that now, we’ll come to it later. And within ox there are again three subcategories: horn, tooth, and foot. Okay? That’s the general map.

Now each of the principal categories—and I’ll mention this briefly because maybe we’ll need it a bit—each of the principal categories has its own special laws. Usually these are called the exemptions, the special leniencies that exist in the different categories. But there are also stringencies. For example, with a person who causes damage: if a person causes damage, then a person who causes damage is liable even if he was under compulsion. A person is always forewarned. A person who damaged property. A person who injured another person has to pay four things in addition to the damage itself: he has to pay loss of livelihood, humiliation, medical costs, and pain. Okay? But if he damages property, then no. That’s what distinguishes a person who causes damage. All right? What distinguishes property that causes damage depends on what kind. We have ox, pit, and fire. What distinguishes fire is that one is exempt for concealed items. And again, with fire we’ll deal with this later in the chapter; I’m saying it here only on the level of the general map. When a fire burns some standing grain, some stack, a grain heap, and inside it there were expensive vessels or something like that, then I pay as though the stack had been full of grain. I ignore the vessels that were there, and in place of the volume of the vessels there is the volume of grain. And the one who is responsible—the one who lit the fire, the one responsible for the fire damage—has to pay not for the concealed items, only for what is visible, or for the whole thing as though it were filled like the visible item. All right? That’s called the exemption for concealed items, and it exists only with fire, and in the simple reading only with fire—though that too can be analyzed, maybe we’ll speak about it later.

With pit, there is the well-known limitation: pit—but not a person, donkey—but not vessels. If an ox or donkey fell into it—sorry, “ox but not person, donkey but not vessels.” If an ox or donkey falls into the pit, then yes, one pays. So the Talmud derives “ox but not person, donkey but not vessels.” Meaning, if a person falls into a pit, one is exempt, and if vessels fall into a pit, one is also exempt from paying for them. Again, I’m not getting into a nine-handbreadth pit or a ten-handbreadth pit; there are details there, I’m not entering that now. But those are the exemptions of pit. Rabbi Yehuda, by the way, disagrees about this, but maybe we’ll touch on that later too. But that is the law.

That’s regarding—so we said fire is concealed items, pit is exempt regarding a person and vessels. What happens with ox? With ox it works like this: we said that under ox there are three different categories—horn, tooth, and foot. Tooth and foot are exempt in the public domain. Meaning, if there is damage of tooth or foot, one is exempt for it in the public domain. That is the special exemption of tooth and foot. With horn, the exemption is that for the first three times one is liable only for half-damages. That’s what is called an innocuous ox, or an innocuous horn. From the fourth time onward one is liable for full damages. There are those who treat an innocuous ox and a forewarned ox as two different principal categories, but let’s say that in a systematic, pedagogic sense it seems more correct to see horn as one principal category with a special leniency, just as each of the principal categories has a special leniency: that for the first three times one pays only half. One has to know about this half that there is a dispute on page 15 about the nature of this half payment. Rav Pappa and Rav Huna the son of Rav Yehoshua disagree whether it is compensation or a fine. Some say it is basically compensation—I have to pay half the damage. Why only half? Because the Torah had pity on me, since the property—since my ox had not yet gored, I’m not aware that I’m supposed to guard it, so they give me a discount: pay only half the damage for the first three times. If after three times you still didn’t learn the lesson, then you pay full damages. That is one conception, that half-damages of an innocuous horn are compensation. According to that conception—and this is just the assumption here—ordinary oxen are not presumed guarded, and therefore in principle you are liable to pay because you should have been responsible for your ox even though it is innocuous; they simply give you a discount, reduced blame.

But the other side says no: ordinary oxen are presumed guarded. Meaning, so long as they have not been forewarned, have not gored three times, the assumption is that this ox is not a goring ox, and therefore the assumption is that a person doesn’t really need to guard his ox. Okay? Because it’s fine. You’re walking with it in the public domain, you don’t have to guard it. But in order that you still not completely ignore what the ox does, and so that when you walk with it in the public domain you’ll still have motivation to pay attention that it not do something, they obligate you in half-damages anyway, even though strictly speaking you are exempt, because the ox is presumed guarded. Therefore, according to this view, the half-damages are a fine. A fine is when one pays something for which there is no underlying legal damage basis obligating him. A fine is a monetary penalty, not compensatory liability. Okay? The goal is to prod you to guard the ox—so that you will guard your ox. All right? So that is the dispute. Practically, we rule that half-damages are a fine.

That is more or less the map. Again, I’ll summarize: we have a person who causes damage, which is under the laws of one who injures and one who damages, and property that causes damage, which is under the laws of monetary damages in Maimonides. Within property that causes damage we have ox, pit, and fire. Within ox we have horn, tooth, and foot. Each of these categories has its own special laws. With a person there is a stringency: he is liable even under compulsion, and if he damaged a person then he is liable for five payments and not just one—not just the damage itself. That is regarding a person who causes damage. Regarding property that causes damage, the special laws are all leniencies, not stringencies. With pit I am exempt for vessels and for a person, if a person was harmed or vessels were damaged. With fire I am exempt for concealed items. With ox, it depends: tooth and foot are exempt in the public domain, and horn is exempt from half the payment in the first three gorings, where the half that I do pay raises the question whether in essence I would have been exempt from everything and the Torah newly imposed half on me, in which case it is a fine—and that is how we rule in practice—or whether really I should have paid everything and the Torah merely gave me a discount, and that is the conception that it is compensation. As I said, we do not rule that way, but there is such an opinion. So that’s the short summary.

One more thing that you need to know, and with this I’ll finish this general introduction, is the definition of the principal categories of damages. What is horn? What is tooth? What is foot? And so on. So, all right, a person who causes damage is when the person causes damage through his own force—that is called a person who causes damage. What is property that causes damage? Property that causes damage is when a person does not guard his property and the property causes some damage. That is the definition in general. Meaning, it is not the person himself who causes the damage, but rather the property that is under his responsibility causes the damage, and the assumption is that the person is responsible for damage caused by his property. Okay? That is called property that causes damage.

Now what are the types of property that causes damage? So, fire—we know, fire is the simple definition: when something is carried by the wind, flies, and causes damage, that is called fire. By the way, the Talmud on page 6, for example, says that if someone places objects at the top of a roof—his stone, his knife, his burden—and they are blown by a normal wind and cause damage while flying, that is a derivative of fire. Meaning, even fire is not literally fire as we know it, but rather damage that occurs when something flies with the wind and in the process causes harm. That is basically what happens with fire. There are certain differences—we won’t get into them now—but that is the definition of fire.

With pit, it is when there is an obstacle, due to my fault, lying in the public domain. And I’m defining this explicitly, pedagogically—not “an obstacle that belongs to me,” but “an obstacle due to my fault.” Because for example, when I dig a pit in the public domain, the pit in the public domain is not mine. How did I acquire it? It’s land that belongs to the public. So what if I dug there? Just because I’m a wrongdoer, that means I acquired the pit too? No. It’s not mine. The Torah placed it under my legal domain so that I would be liable for it. All right? But in essence it is not really mine. Therefore I’m being careful with my wording: pit is an obstacle whose existence I am responsible for. A pit in the public domain—if it causes damage, I have to pay. “In the public domain” is also not entirely precise, but that’s the simple conception. There’s a dispute among the Amoraim and so on. So it could be a banana peel, it could be a stone that I put in the public domain and someone slipped on it, or I did something there and someone broke a leg, or an actual pit in the simple sense and something fell into it and was damaged. All these are called pit.

What happens with ox? With ox, it is basically my animal causing damage. And therefore—yes, pit is really a kind of damage that occurs when the injured party comes to the damager. The pit is static, right? When the injured party comes to the damager and is harmed—he runs into it in some fashion. Right? Fire is when the fire moves with the wind and reaches the damaged item and burns it. Property that causes damage is also similar to fire in that sense. Meaning, these are animals that go around and cause damage in various places. Okay? Now the modes of damage are what create the distinction between horn, tooth, and foot. Tooth is when the animal causes damage for its own benefit. For example, an animal eats something because it is hungry. So it ate my things, it damaged me. But it did it for its own benefit. That is called tooth. Or even if it rubbed itself against a wall for its own pleasure—it’s scratching itself, okay? Just because its back itches, but this ox knocked down the wall. That is called tooth, because basically it did it for its own benefit. “Tooth” obviously comes from eating, but in principle that is just the model case: all damage done for the animal’s own benefit is tooth.

Foot is damage the animal causes while walking. The animal walks and in the course of that steps on something, or moves something, damages something while walking—that is called foot, foot damage. Horn has two basic characteristics, and what exactly the relation between them is—that is a very big and very unclear question. One of them is that it is unusual damage, not the animal’s ordinary way. Tooth and foot are ordinary damages of the animal: an animal sees food and it is hungry so it eats, or it walks and in the course of that it doesn’t pay attention and steps on something. These are damages that it is normal for the animal to cause. But horn is damage that is not the animal’s normal way; it is unusual damage. Any unusual damage is horn. For instance, a dog that bites—that is unusual, because why is it unusual? Because it doesn’t do it for its own benefit; it just bites. If it does it for its own benefit, then it is its normal way to damage. If it bites, then apparently that is unusual—soon I’ll make a comment on that. So that is the characteristic of unusualness. Or a dog that eats large chickens, not small ones, in a way that is not its normal way of eating—even though it is eating them, which would normally be tooth, since it is unusual it is defined as horn damage. Even if it has benefit from the thing, if it is unusual it becomes horn.

There is another characteristic of horn, and that is intent to damage. When the damage is done with intent to damage, as opposed to foot, where it happens while walking—it is not done intentionally to damage—and also with tooth it does it in order to benefit, not in order to damage. Horn is when its intent is to damage. What is the relation between these two characteristics? That’s a topic for several classes. I’m not going into it here. Between unusualness and “its way to damage.” Some identify them, some say one of them is enough, some say both are needed—I’m not getting into that now. Okay? But it’s worth knowing this as the overall picture.

Okay, so that is basically the picture of the principal categories of damages in broad terms. Now one more sentence before we go out for a few minutes’ break, as I said. In the Torah itself, when we look at the verses, the verses speak about an obligation to pay. That’s it. “If one man’s ox gores the ox of another, he shall surely pay,” or “the one who kindled the fire shall surely pay,” or if an ox falls into a pit—yes, one has to pay. The verses speak about an obligation to pay. But in property-caused damages there are really three aspects, and we’ll still divide those further. One aspect is the obligation to pay, which is written in the Torah. About that there is no question. Okay? In principle it is written separately for each principal category. A second aspect is the prohibition. There is a prohibition against my causing damage; there is a prohibition against my property causing damage; so there is a prohibition here. All right? Beyond the obligation to pay. That is not written in the Torah. There is no simple source for the prohibition against causing damage. An opening class to tractate Bava Kamma in yeshivot is usually the source of the prohibition against causing damage. I’ll go over that briefly in the second half of the class. And a third thing is the duty to guard. I’ll explain later why this is a third thing, because there are those who identify it with one of the other sides. But in principle it is a third thing. The duty to guard means: I have an obligation to guard my property so that it not damage someone else. All right? So again, I have an obligation to guard; if it caused damage, I have an obligation to pay—that is the second aspect; and the third aspect: there is a prohibition—when my property causes damage, or when I did not guard properly, I have violated a prohibition. Okay? I’ll define this better after the break, because this third thing is a little bit of the first and a little bit of the second. So I’ll still talk about it. Okay, so let’s go out for a few minutes to refresh ourselves, wash our faces, come back in another four minutes, okay, fine, three or four minutes just to refresh and come back. Okay? Okay, meanwhile I already sent a WhatsApp to Nachum so he can try to check the Dropbox for me and we’ll see if that moves forward.

Okay, we have a new face—Aviad?

Yes, Rabbi.

Peace be upon you.

Hello, hello.

Are you in this class?

At the moment I’m checking. Unfortunately I didn’t manage to register during the registration period, so right now I’m entering classes and I’ll register afterward.

Okay, so just—you know what—if you register for this class, get in touch with me, because I gave some kind of introduction here of twenty minutes or half an hour about how the materials are distributed and everything, so I’ll give that to you as well, okay?

Certainly, with pleasure.

Okay, so let’s continue.

So we said that in the laws of damages there are three aspects. One aspect is written explicitly in the Torah: the obligation to pay. If my property caused damage or I caused damage, I have to pay. The second aspect is the prohibition. There is a prohibition against causing damage when I cause damage, and in the simple understanding there is also a prohibition when my property causes damage. The third aspect is the duty to guard. I need to guard my property to make sure it doesn’t damage someone else.

Now the duty to guard has “and its owner did not guard it”—there is, yes, some kind of source for that in the Torah. This is the topic at the beginning of our chapter, so we’ll still deal with it. But for the prohibition there is no simple source. And the question is: where does the prohibition come from? So as I said, this is usually the topic of opening classes on Bava Kamma in yeshivot. Here already I’ll lay out the basic issues—in other words, what exactly are people dealing with? So like this: the obligation to pay is simple. If my property caused damage, insofar as this is my responsibility, I need to pay. The prohibition—if one sees it as a straightforward prohibition—could have been written in Yoreh De’ah: there is a prohibition that my property cause damage. Okay? Then it would have had no connection at all to the obligation to pay. There is a prohibition that my property cause damage. So for example, one whose property causes damage indirectly, or he causes damage indirectly—not necessarily his property, but he causes damage indirectly—we’ll see this in our chapter—there, according to most views at least, there is a prohibition, but there is no obligation to pay. Okay? By the way, there are also opposite cases: “they open their drains,” on page 6 of the Talmud, and other kinds of damagers, where there is no prohibition—it is permitted to do it—but if damage occurred, then I have to pay. Meaning, the obligation to pay and the prohibition are apparently two independent things. There is a prohibition upon me that my property cause damage, and aside from that, if damage occurred I also have to compensate the injured party. Those are two different things.

What is the duty to guard? If I present it this way, then now the duty to guard becomes something a little hard to define. One could define the duty to guard as belonging to the realm of prohibition. The definition of the prohibition is really a duty to guard; meaning, if I didn’t guard, I violated a prohibition. Then really the duty to guard belongs in Yoreh De’ah and not—someone who did not guard properly violated a prohibition. Theoretically one could say that someone who did not guard properly, even if the animal in the end did not cause damage, still violated a prohibition, because he did not properly fulfill his duty to guard and there is an obligation on him to guard. Okay, call it a positive commandment to guard, or a prohibition if you did not guard, and I call that a prohibition. For me, even neglect of a positive commandment, for purposes of this discussion, will be called a prohibition—not literally a positive commandment; no one counts it that way—but for the sake of the discussion, okay? If one defines the duty to guard that way, then the duty to guard belongs to the area of Yoreh De’ah, and really does not truly interest us here.

But there is another way to define the duty to guard. It is a duty of civil law, not Yoreh De’ah. What does that mean? My fellow person, or my neighbor, or the owner of someone else’s property, has the right to demand of me that I guard my property so that it not damage him. This is not a prohibition in the Yoreh De’ah sense. Say, according to this conception, for example, if I did not guard properly and in the end the animal did not damage, there is no way in the world that anything happened. The one who was harmed can come and complain to me: why didn’t you guard it? All right? In contrast, according to the previous definition of the duty to guard—if I define it as a prohibitory duty, Yoreh De’ah—there would be room to say that I violated a prohibition even if no damage happened at all. I simply did not fulfill my duty to guard my property. Okay? So it is very important how one defines the duty to guard.

Now the point is that if I define the duty to guard as a duty of civil law, not Yoreh De’ah, then it already stands to reason—though even then it is still not strictly necessary, but it stands to reason—to see the duty to guard as the basis of the tort claim. Meaning, if I did not guard properly, the injured party can come and sue me. Why? What do you want from me? What is your cause of action against me? Because you did not guard properly, that’s why. He comes with claims against me because I didn’t guard. So notice: here the failure to guard does not mean that in the world to come they’ll settle accounts with me over not having guarded and I’ll be punished because I violated a prohibition. Rather, this is a legal definition. Failure to guard is the basis of a tort claim. Meaning, my not guarding is what enables the injured party to come and sue me. You did not guard, you are at fault, pay me for the damage that happened, compensate me. Okay?

And is it only because it’s a prohibition that he can come with a claim against me?

Not at all. Completely independent. Completely independent. If I’m permitted not to guard, then there’s no basis for a claim here?

Of course there is. You may be permitted not to guard, but he has the right to demand that you guard. Let’s say he doesn’t demand it, or let’s say he demands it and I didn’t do it. So think, for example, I signed a contract, all right? And I didn’t fulfill it. The other person’s claim against me is not because I did something prohibited, but because there is a contract that obligated me to do it and I did not fulfill the terms of the contract. It may be that I have to compensate him for that, for example, but I wouldn’t define such a thing as a prohibition. It is a legal cause of action.

But in our case there is no contract, so really what creates the contract is that I’m forbidden not to guard?

What creates the contract is a contract that the Torah creates implicitly. A social convention. But according to this conception it is still a contract. It is still a contract among people, and therefore the cause of action—when I did not guard, I did not necessarily violate a prohibition. Once I didn’t guard, that creates what legal theorists call, right, a tort cause of action. Now the injured party can sue me because I did not guard. If I had guarded, he couldn’t sue me. But it’s not that I violated a prohibition; I violated no prohibition.

So here, notice, basically from this comes a conception that says the other person’s right to sue me for compensation is grounded in my not having guarded. In contrast, as I assume most or all of you know, there is a big discussion among later authorities whether that is really so. Some later authorities want to claim that the injured party’s right to sue me, the damager, for compensation does not stem from my failure to guard. The mere fact that the ox that damaged you belongs to me is enough to obligate me—or to create a cause of action, not to obligate me, one has to be careful here—but to create a cause of action. All right? We’ll see later that in any case it is necessary that I did not guard properly; without that you can’t obligate me. So we’ll return to the question of what exactly the difference is between those two understandings. But for now, these two understandings are either that negligence in guarding is itself the basis of the tort claim—because I was negligent in guarding, the injured party can sue me—or a second possibility: no, negligence in guarding is not the basis of the tort claim; rather, the mere fact that what damaged you was my property, that it belongs to me. So I am responsible for what it did regardless of the question how I guarded, whether I was negligent, whether there is a prohibition or not, regardless of all the previous discussions. And then it follows that the duty to guard has no legal status. It has no legal status, and then one would apparently expect to assign it at most to Yoreh De’ah. At most there is an obligation on me to guard, or a prohibition if I did not guard, but it is not connected to the legal proceeding. In the legal proceeding, what the injured party is claiming against me is because the ox that damaged him belongs to me. He doesn’t care whether I guarded properly or not. The mere fact that the ox belongs to me creates a cause of action. And again, what I just said is not precise, because in the end it does matter whether I guarded properly. If I guarded properly, I am exempt. That is explicit Talmudic law; there is no dispute about that. But we will see later that even so, that does not entirely erase the difference between the two conceptions I just described. That is the general picture.

And therefore many—and not a few—later authorities, by the way, mix up these planes. I don’t know whether they weren’t aware of it or whether that was their conception from the outset, but there are quite a few arguments of later authorities that I don’t agree with because they don’t make the distinction, or at least they don’t put the distinction on the table. Maybe they sensed it and didn’t accept it, but they do not put on the table this distinction between Yoreh De’ah and civil law. And many times, once I say that negligence in guarding is the basis of the tort claim, they immediately say: this means there is a connection between the prohibition and the monetary liability. It’s somewhat like what Binyamin said earlier. I don’t agree.

I still didn’t understand why there would be a case for saying there is a connection between the prohibition and the monetary liability. It seems that in any case these are two separate planes. If it is prohibited for me, then that is a cause of action? You yourself said before that there is a connection.

No, the connection is that the same thing which is the reason for the prohibition can also be the reason for the claim.

No, that’s not interesting. If so, then we completely agree.

I understand, okay. But why is there still a connection? That’s what I’m asking. The fact that there are later authorities who say there is a connection between—for example Rabbi David Poversky—afterward in the end he rejects it, but he goes with it—that if we understand that negligence in guarding is the basis of the tort claim, then that means there is a prohibition, or if there is a prohibition then negligence in guarding is the basis of the tort claim. And I don’t agree with that. Again, it may be that he really assumes what I said, namely that this is essentially a test case: if there is a prohibition, that means there is a reason for the prohibition, and that reason is also a basis for a claim.

Why assume that? Because why am I forbidden not to guard? Presumably because a person is expected to guard; it’s something everyone does.

And what does that have to do with the bond between me and someone else?

No, because if the Holy One, blessed be He, demands of people that they guard, that means that is how one should behave, and now I can understand that—

Fine, that is how one should behave. The question is whether it is a legal obligation. The question is whether the legal obligation can arise from the same obligation that the prohibition falls under. I have an obligation to give charity, right? Can the poor person sue me? Certainly not. Because there it is not a sufficient reason. The reason I am obligated is not sufficient, because it does not come specifically to him.

And what difference does that make? Even according to the prohibition, that doesn’t mean it comes specifically to him; it’s the same distinction. The prohibition when my property caused damage or when I did not guard—if I define it as a prohibition of Yoreh De’ah—then that is exactly like charity. What does it have to do with anything?

Right, but in this case the prohibition teaches that you are acting improperly, and in this case one can clearly point to the injured party.

With charity too you are acting improperly.

What about charity?

Yes.

But who says that you were harmed by it? Maybe I’m poor and need charity. If I had behaved properly, I wouldn’t have given to you, I would have given to someone else. I don’t know, but you have to prove that you are the injured party.

Again, what do you mean I’m harmed because I’m a poor person who needs—

No, that’s not “harmed.” You’re making an analogy between two things and taking it too far. Obviously a poor person is harmed—that’s the whole idea. But the fact that there is a commandment of charity doesn’t mean that a poor person can sue me. By the way, even the whole tribe of poor people can’t sue me. Just like the whole tribe of priests can’t sue you if you didn’t give priestly dues. Why not?

If they all join together, then they can.

They can all sue together?

I don’t know.

No, I’m saying they can’t, but according to your position they should have been able to. And here now you already have them all standing here together. They organize together and sue me.

I don’t know whether this concept of a class-action lawsuit is—

That’s what I’m asking, again, I don’t want to get into it. No, certainly they can. That’s not a class-action lawsuit. A class action is something else entirely. Let’s say they all organize together, they transfer all rights, their rights as poor people, to one person. What difference does it make?

Ah, if they do such a thing.

There’s no problem doing that. No problem at all in doing that.

All right, in any case, for our purposes I only want to say—you can’t transfer it because it’s something not yet in existence, that right. Okay, no, it can be done, but let’s leave that, it’s not— The point is this: if the prohibition against causing damage is a prohibition of Yoreh De’ah, then one cannot derive from it anything about what happens on the legal plane. And anyone who makes a connection between those two is assuming something that is at least not necessary. All right? You’re allowed to make assumptions that are not necessary, but one has to notice that that is the situation. There is no necessity. Okay? We’ll return to this, and I’ll show you that there are those who see necessity here, and I think they are mistaken about this—maybe we’ll see some of that today as well in another context. So that is the map.

Now let’s look a bit. Just one thing needs to be emphasized—I don’t know—but clearly you don’t need an actual claim by the injured party. In property-caused damage, the person is liable; it is defined as a monetary liability even without a claim, no?

Of course. What do you mean? If there is no claimant, there is no liability.

No, there is an injured party, but he doesn’t know who it is, so I’m not liable so long as he doesn’t drag me to—

No, but you don’t know who he is—that’s not relevant. Of course you’re liable. But that’s called that he is claiming; it doesn’t matter. He doesn’t need to come to court and sue, but there needs to be a claimant, there needs to be someone injured. Meaning, there is a litigant standing opposite me. There it is—this is, I think, my favorite midrash, in Vayikra Rabbah, I think in the portion of Emor. About Alexander, who came to Africa and saw there some king about whom he had heard wonders, so he goes to see how he judges between the citizens of his people. So two people come there: one sold the other a courtyard, all right? And the second found a treasure inside the courtyard. So the one who bought the field wants to return the treasure to the seller. He says: I bought a field, not a treasure. And the one who sold says: what do you mean? I sold the field and everything that comes with it, including the treasure; that treasure is yours. So they go to litigate before the king of Africa. All right? And then the king of Africa finds a wonderful pious solution: do you have a son, do you have a daughter? Let them marry each other and take the treasure. But that’s piety. That’s not interesting—it’s for weaklings. I’m asking what the actual law is. Don’t give me tricks here. What is the actual law?

What is the actual law?

It’s not a legal question. It’s a question of common sense.

Why not? Why not?

There’s no plaintiff and defendant. What are you claiming?

Exactly! Meaning that in a place where the right—I claim that I need to give him the money, I don’t want to hold it, it’s robbery in my hands.

Then declare it ownerless if you don’t want to hold it. You need there to be someone whose right was harmed, so that a legal proceeding can be conducted here, so that it belongs to civil law. If there is no right that was harmed, then there is no civil law. Therefore it is not only that it is unclear what the law is here. The better question is: why is there no discussion at all about this in the halakhic decisors and in the Talmud and so on? Because this is not a legal discussion; it doesn’t interest anyone. Okay? So for the pious, the son and daughter solution is nice, but when you ask what the law actually is, the law actually is: go beat each other up, do whatever you want, leave me alone. It’s not my business.

How does that connect to here? Why did that remind me of this? There was some comment here that reminded me of it.

A litigant—that we said—without a defendant, if when there is no defendant—

Okay. Good. We wanted another monetary obligation that the Torah imposed without—

What?

We wanted another case, and if we say damages really are not a liability that arises because of that, did we find another monetary obligation that the Torah imposed on me without a prohibition?

A monetary obligation that the Torah imposed on me without a prohibition? No, I can’t think of one right now. Is there a particular case?

There are things that are of course the result of a contract, for example liability of guardians. Liability of guardians—if, say, the property was lost and I pay—I don’t know if one can define that as a prohibition. Of course guardians appear in the baraitot there in the first chapter of Bava Kamma as part of the primary categories of damages. That’s Rabbi Chiyya and Rabbi Oshaya there. So in that sense it’s somewhat like damages; I don’t know if it’s really an entirely separate section. But basically that is contractual liability, not liability rooted in a prohibition. According to the conception I’m presenting here in damages, damages too are really contractual liability in a certain sense, even though of course there was no actual contract between the two sides, but the Torah creates a social convention, some kind of contract among society as a whole. But it is a person-to-person obligation, not an obligation rooted in prohibition. Okay?

By the way, in many places you’ll see—there is Tosafot in Bava Kamma on page 11 regarding, regarding—yes, many later authorities bring this regarding the impurity of a woman after childbirth. Tosafot says there that if there is doubt whether there is a placenta without a fetus, so there is doubt regarding her impurity and doubt regarding whether she is permitted to her husband, because a woman after childbirth is also forbidden to her husband. Then Tosafot says there is a difference. There can be situations in which she would not be impure but would be forbidden to her husband, or the opposite. The prohibition to her husband is a doubt of prohibition, and the impurity is a doubt of impurity. So if it was in the public domain, then from the standpoint of impurity she is permitted, but from the standpoint of the prohibition to her husband she is forbidden. And if it was in the private domain, then the reverse. And from there they bring proof that even though a woman who became impure is forbidden to her husband, there is a shared reason for both, but it is not that one is the cause of the other. It’s not that the impurity is the reason the woman is forbidden to her husband; rather she is both impure and forbidden to her husband, and these are two independent things, and therefore one can exist without the other, or vice versa.

And therefore also in a place where, for example, with robbery, there is a prohibition against robbing and there is an obligation to pay. Is the obligation to pay because of the prohibition? Who says? The obligation to pay is because “my money is in your possession.” Say a minor who robbed—he too has to pay, yet there is no prohibition upon him. So there is a prohibition and there is an obligation to pay, and the obligation to pay is not because of the prohibition. Two different things. Okay? The same in many places. “Do not delay the wages of a hired worker”—there is an obligation to pay “on that day you shall give him his wages”; you have to pay. Okay? Now “on that day you shall give him” —the obligation to pay and the prohibition both appear together. Is one the cause and the other the result? I’m not at all sure. Two things are happening here: there is a legal aspect and there is a prohibitory aspect. With a hired worker it is more complicated, I think, because there it starts with a contract, but let’s leave that. In any case, that is why I say: the question whether there are other cases where there is an obligation to pay without a prohibition—it may be that all cases are like that. The fact that there is a prohibition is true, but it is not at all clear that the prohibition is the reason for the obligation to pay. Two different things. Our cousins the statisticians have already taught us that correlation and causation are not synonymous. Meaning, two things can be correlated with each other, appear together with each other, but that doesn’t mean one causes the other or the other causes the first. Sometimes there is correlation, but it is not causal.

All right, so let me share here—I’ve already started sharing the file. Let’s look at some sources now to start dealing with these questions from the inside. So look at the Tur at the beginning of section 378; he is talking about a person who causes damage. “Just as it is forbidden to steal and rob your fellow’s money, so too it is forbidden to damage his property.” By the way, these files that I’m sharing here are summary files of the class that will also later appear in Moodle and Dropbox. All right? So you’ll be able to see everything, the sources and also the summary I’m making. I’m simply also using this file to read the sources from during the class, that’s all. I’ll enlarge it a bit so it’ll be easier for you to see.

“Just as it is forbidden to steal and rob your fellow’s money, so too it is forbidden to damage his property.” So what is he saying here? First of all, he establishes that there is a prohibition, right? There’s ostensibly no source for it, but he says just as it is forbidden to steal and rob, so too it is forbidden to damage. We’ll see—again this is not absolutely necessary—but it certainly seems that the Tur understands that the prohibition against stealing and robbing is probably also the source of the prohibition against damaging, not merely an analogy. Since there is no source for the prohibition against damaging, the Tur feels he has to give us the source. What is the source? The prohibition against stealing and robbing. All right? That is the language of the Tur.

What does the Shulchan Arukh write? “It is forbidden to damage your fellow’s property.” The same thing in section 378, yes? “It is forbidden to damage your fellow’s property, and if he damaged it, even though he did not benefit, he is liable to pay.” So what do we see here? He does not make the analogy to theft and robbery, even though of course the Tur was right in front of him. For some reason he chose not to copy this formulation of the Tur and not to make the analogy to theft and robbery. He says: “It is forbidden to damage your fellow’s property, and if he damaged it, even though he did not benefit, he is liable to pay.” But what one does see in the Shulchan Arukh is that the prohibition against damaging is somehow attached to “if he damaged it, even though he did not benefit, he is liable to pay.” So one might understand—and again this is not necessary—that there is some connection between the prohibition against damaging and the obligation to pay if one damaged. Notice, all this is speaking about a person who causes damage. For now we’re only dealing with a person who causes damage, not property that causes damage. It is unclear what the source is for the prohibition, but there is a prohibition, as the Shulchan Arukh writes, and the Shulchan Arukh also links to it the obligation to pay.

And also “even though he did not benefit”—that’s significant. Yes, because these are not benefit-payments, these are damage payments, compensation.

No, but now it is really an argument against the analogy between theft and robbery and damage, because in theft and robbery he does benefit.

Even if he didn’t benefit, the property is with him.

Yes, נכון, although even in theft and robbery the payment is not payment for benefit; it is compensation or returning the property. Right, returning the property. No, but if you had benefited, then there would have been room to compare and say: I benefited, so I received money and now I need to return it. Take the case of an incompetent person who robbed, okay? Then he didn’t even benefit in the sense that the money is his. All right? Now the question is whether he truly robbed, whether he is liable to return, or whether we merely take it in order to restore the property to its owners. But at the conceptual level “my money is in your possession” is obviously still here; it is my money. But he did not acquire it, it is not now the incompetent person’s property. So I’m saying: but the claim “my money is in your possession”—what I want to show from there—is that it exists because my property is in your hands, not because of whether you benefited. The fact that in the meantime you also benefited from it because your wealth increased is not essential to the matter. I agree, I agree, but with a person who damaged without benefiting, there the claim “my money is in your possession” does not exist because it was never with me; I only caused you damage, I did not receive anything. The tort basis says that despite the fact that there is no money by you, since you harmed my property you need to make up what you damaged. Right. And at that point it differs from a thief and a robber. A thief and robber do indeed have with them some piece of money or benefit that they received.

Now in section 389, which is already dealing with property that causes damage, the Tur says this: “Just as it is forbidden for a person to damage his fellow, and if he damaged he is liable to pay, so too one must guard one’s property so that it not damage, and if it damages one is liable to pay.” So he continues his analogy: he starts with thief and robber and moves to a person who causes damage. Here he moves from a person who causes damage to property that causes damage. Yes, one must guard—but on the way he also inserts the duty to guard. And again, it seems that he connects the “one must guard his property so that it not damage” with “if it damages he is liable to pay.” Meaning, from here it seems that he sees a connection between the duty to guard one’s property so that it not damage and the obligation to pay. Does that mean there is a connection between the prohibition and the monetary liability? Not necessarily. Because it may be that when he says “one must guard one’s property,” he means a civil-law duty. In other words, another person has the right to demand of me that I guard my property so that it not damage him—not a prohibition, but a legal right. Therefore, if I did not guard and he was harmed, he can sue me to pay. So one can also interpret the Tur this way, and then it may be that when he says “one must guard one’s property,” he does not mean a Yoreh De’ah prohibition. “One must guard one’s property” means a legal determination. On the legal plane, society has the right to demand of you that you guard your property. And if you did not guard, that doesn’t mean you violated a prohibition on the religious-prohibitory plane; rather, it is a basis to sue you for compensation.

In the Shulchan Arukh, when a person caused damage under compulsion—

What?

When a person caused damage under compulsion, a person who causes damage. And according to the approach that compulsion means this is not called his act, that the act is not attributed to him at all, then they will indeed say that in total compulsion a person is not liable. That’s a dispute among the medieval authorities. It may be that the dispute is exactly about this. It is the dispute between Tosafot and Nachmanides whether, in total compulsion, a person is also liable or not.

In the Shulchan Arukh in section 389, parallel to the Tur we saw, he says: “Any living creature that is in a person’s domain and caused damage—the owners are liable to pay.” Notice? Very interesting. I’m making the comparison to the Tur so you can see what he omits. And this isn’t just an omission by accident, because he follows the Tur all the time, so when he chooses to formulate things differently it is usually worth thinking about why he chose that. So notice, first of all he does not continue the analogy from a person who causes damage to property that causes damage. And he does not go through the duty to guard either—it isn’t even mentioned. He starts directly from the third stage of the Tur. Only the third stage of the Tur appears here there, namely: if my property caused damage, I have to pay. It doesn’t say here that there is a duty to guard, it doesn’t say here that there is a prohibition against causing damage, and certainly not what the source of the prohibition is. He doesn’t make an analogy to a person who causes damage—nothing. All of that does not appear in the Shulchan Arukh. One could have learned—and again this is learning from what he omits, so you always need to be careful with such conclusions—one could have learned that he probably chooses this formulation to tell me that he does not see a connection between the duty to guard and the obligation to pay. Two different things. If there is any duty to guard at all, we’ll still see later. But he does not see failure to guard as the basis of the tort claim. Rather, what does he see? I mentioned earlier the second possibility: the mere fact that there is property in my domain obligates me to pay. I am responsible for what my property does, not because I did not guard properly. That is the plain meaning of the language of the Shulchan Arukh: “Any living creature in a person’s domain that caused damage”—he is precise in saying “in his domain” and not “his,” because this includes a guardian too—“the owners are liable to pay.” Meaning, that really sounds like a legal sentence imposing responsibility, not a sanction on someone who did not guard properly. You are responsible for what your property does. Okay?

So if I had to point to the difference between the language of the Tur and the language of the Shulchan Arukh, it somewhat seems that they are phrased in the two ways I described above: whether the failure in guarding is the basis for payment, as the Tur says, or whether the Shulchan Arukh says no, the mere fact that it is my property obligates me to pay. And again, everyone agrees one has to guard, but that will be seen shortly. Look for example at the language of Maimonides in the laws of monetary damages—and notice this is the laws of monetary damages and not the laws of one who injures and one who damages; I’m talking about property that causes damage: “Any living creature that is in a person’s domain and caused damage,” like the Shulchan Arukh, “the owners are liable to pay,” notice, “for their property caused damage.” More explicit than the Shulchan Arukh. And it really is strange that the Shulchan Arukh chooses Maimonides’ language over the Tur’s language, but omits the phrase “for their property caused damage.” Maybe it seemed obvious to him, I don’t know. Because in terms of content it certainly seems he learns like Maimonides: that the mere fact that my property caused damage places on me responsibility to compensate the injured party. The mere fact that my property caused damage, not that I was negligent in guarding or things like that.

Is there no duty to guard? Look at Maimonides, Laws of Monetary Damages chapter 5: “If an animal was grazing and broke through and entered fields and vineyards, even though it has not yet caused damage, its owners are warned three times. If he did not guard his animal and did not prevent it from grazing, the owner of the field has permission to slaughter it by a valid slaughter and say to its owners: come and sell your meat, because it is forbidden for a person to cause damage and then pay for what he damaged; even to cause damage indirectly is forbidden.” Here it already seems that there is a prohibition against causing damage, and there is even some kind of connection to the duty to guard, though this connection here is made in a very indirect way. Because “if he did not guard his animal and did not prevent it,” it doesn’t say that for that reason he is liable to pay, but rather that for that reason the owner of the field has permission to slaughter it. Because that is how he guards against it. Why valid slaughter? So as not to cause unnecessary loss to the owner of the animal. If the slaughter is not valid, then basically the meat is worthless or worth very little, so you would have caused needless damage. You have to slaughter it validly.

But in principle, even here in Maimonides there is no connection between the duty to guard and the obligation to pay. What he says is that it is forbidden for a person to cause damage and then pay for what he damaged. So there is a prohibition against causing damage. And it really does imply—well, one can discuss it—but not that because of the prohibition there is an obligation to pay; rather, the prohibition exists even if you paid, it changes nothing. You are obligated to pay because you are responsible for what your property does, as we saw in Maimonides chapter 1 law 1. It’s just that what is written here is that I also have the right to demand of you that you guard, and if you don’t carry that out, I will guard in your place. And if I need to slaughter the animal validly in order to keep it from damaging me, then that is what I’ll do, because I have the right to slaughter in order to guard the animal in your place. Here it looks like a legal right of one person to demand of another that he guard his property so it not damage me. This is not a prohibition in the Yoreh De’ah sense. At the end of the sentence in Maimonides it does look like a prohibition, because “it is forbidden for a person to cause damage and then pay for what he damaged.” But that prohibition really is not the prohibition of not guarding that is then compensated by payment. Even if you paid, the prohibition remains. The prohibition remains, and one certainly could understand it as some kind of Yoreh De’ah prohibition unrelated to the issue.

So why does Maimonides mention it if it is unrelated to the issue?

Because he is learning—he is in the laws of monetary damages—so he mentions the prohibition too.

No, but there’s the word “therefore.” Therefore the owner of the field has permission to slaughter, because if not, let that animal damage you, sue him and he’ll pay you and everything is fine.

No, it may be that I can also prevent him from doing it from the outset, and that same basis of the tort claim can be a sufficient basis to prevent him from causing damage in the first place. That’s what Maimonides is saying. Why do we need to get to a prohibition?

No, but his conclusion in Maimonides—you say he’s talking about a prohibition.

Because who told you that you are allowed to damage him—just demand compensation if his animal damaged you. Who said you are allowed to slaughter his animal?

I didn’t understand. Who told me I’m allowed? Don’t prevent it—sue him and he’ll pay you.

All right, that you can always say even if it’s forbidden. Who said I’m allowed to stop him from violating a prohibition? We do not coerce regarding commandments.

Yes, because he already has a prohibition, and you can force him or compel him not to violate the prohibition. That allows you not only to sue him afterward if he damaged you, but also to slaughter from the outset so it won’t damage. I think that connection is not necessary in either direction. Even if it were forbidden, that still wouldn’t necessarily permit me to slaughter his animal.

I didn’t say it was necessary, but if Maimonides finds such a connection, it seems to me that this is the reasonable explanation of that connection. I’m not saying there must necessarily be such a connection; I agree it doesn’t have to be. But if Maimonides is already making such a connection, it seems that the connection is to the Yoreh De’ah prohibition, not to civil law.

Why? A civil-law prohibition can also constitute a basis.

But there is no civil-law prohibition. Maimonides says that in civil law it is responsibility; it is not that the duty to guard is the basis of the tort claim.

Fine, you’re assuming that. That itself is what you wanted to prove from Maimonides.

No, I’m carrying it over from the previous law in Maimonides.

I understand. Okay, so everything rests on the previous law.

Yes, yes. So if I want to show one consistent line here, it seems to me that this is the reasonable explanation. One can argue about the details, but it seems to me that this is the reasonable explanation.

Okay, I think we’ll stop here. All right, we’ll stop here. Notice, the page I put in—and again, I’ll take care of making sure it is accessible, I hope I’ll manage to make sure it is accessible to you—in Moodle it is already accessible, but in Dropbox it also already contains preparation for the next class. Okay? So you can already use it for the next class too, in which I’ll continue the introduction. I hope we’ll finish it in two classes; maybe we’ll need one more, we’ll see. Okay? If anyone wants to ask or comment, then with pleasure. If not, then we’ll part as friends.

More power to you.

Be well.

Thank you very much.

Thank you very much.

Goodbye.