The Receiver Chapter – Lesson 3

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[Rabbi Michael Abraham] And this is apparently a dispute between Tosafot and Nachmanides. A dispute among the medieval authorities (Rishonim), yes. There’s an example of the same kind of thing—again, just an analogous example—when a minor is pursuing someone. That’s a dispute among the Amoraim. What is the law of a pursuing minor? And the claim is that if a minor is pursuing someone, we kill him; we save the pursued person even at the cost of the life of the pursuing minor. And in that case the assumption is that a minor has no legal understanding, and therefore there is no guilt here. So you might say, fine, then he’s acting under compulsion—what do you want from him? How can you suddenly kill him? He’s under compulsion. Right. We kill him not because he is guilty. We kill him because he poses a danger to someone else. And that other person also isn’t guilty—what do you want from him? The one who is the source of the danger is the one who has to bear the consequences in order to solve it, to solve the problem. Something like that, I’m saying, applies in torts as well—not exactly the same thing, but something like it. You may not be guilty, everything’s fine, but if your property poses a danger to others, the responsibility is on you. Like with an innocuous ox—”so that he should guard his ox”—where they place a penalty on him; we’ll talk about that in a moment. Okay, so in any event, the Mishnah shows us that no—it’s not true. There is a certain level of guarding from which point on you are exempt. So again, if we had thought that you must pay regardless of the level of guarding you provided, then clearly our tort conception here would be liability for one’s property that caused damage. Right? Then it would be obvious; there would be no room for discussion. The liability for what my property did is imposed on me. I have to pay, and therefore what difference does it make how much I guarded or didn’t guard? This isn’t a question of guilt; it’s a question of responsibility. Okay? But now the Mishnah teaches a novelty: that’s not true. The Mishnah teaches: no. There is a certain level of guarding from which point on you are exempt. Does that automatically mean that negligence in guarding is what creates the liability—the other side of the conceptual inquiry? Not necessarily. Once we introduce that there is also a duty to guard, and that there is a level of guarding that exempts, now the inquiry we spoke about opens up. Now we can discuss it. Is what creates the liability in guarding the negligence, and when there was no negligence I’m automatically exempt? Or is what creates the liability in guarding the responsibility for my property having caused damage, except that if I guarded properly they exempt me from that responsibility? We’ll still talk about why, really. It’s a good question, by the way. If the responsibility is on me, then what difference does it make whether I guarded properly or not? The responsibility is on me; this isn’t a problem of guilt. So why does the level of guarding matter—why is the level of guarding determinative? In this context of responsibility for my property, I just—as I said last time, at the end of the previous class—I talked about the possibility of defining it, at least in the case of an innocuous goring ox and maybe elsewhere too, as though the obligation is on the ox itself. And as the owner, they roll that obligation over onto me because nobody sues the ox in religious court. And not only that: even if they did sue the ox in religious court, when they collect from it, in the end it’s my property, so they’re collecting from me. Therefore they have to bring me to judgment, not the ox. Okay? That’s one way to speak about responsibility for my property that caused damage. Now, if I guarded properly, then that basically means the ox acted independently, against my will. I tried to prevent it, and therefore the ox’s liability is not rolled over onto me, and that is why I am exempt when I guarded it. And there’s another possibility for understanding it—we’ll see this later too—that the responsibility is a kind of insurance responsibility. I provide insurance to the public around me against damage caused by my property. It’s not a tort obligation on the ox that passes over to me; it’s insurance. An insurance company pays someone not because it is guilty, but because it has a contract with him that if something happens to him, it pays him. Okay? But of course if he was negligent—if he was negligent and that’s why it happened—then the company won’t pay him. Right? There’s a kind of game here. So in our case, I define the insurance company as the owner of the property. You’re the insurance company; you have to insure everyone around you against damage caused by your property. What happens if you guarded properly? If an insurance company guarded properly, is it exempt? No, apparently not. But maybe yes, because insurance companies often also don’t pay for force majeure. It depends on the policy, of course, but there can be such a clause: for force majeure we don’t provide coverage. If you guarded properly and this thing still happened, then you don’t have to pay, because this is, as it were, force majeure. Your property didn’t act here as your property; it acted through some other force, and therefore the responsibility is not rolled over onto you—you do not bear the insurance-type responsibility. Okay. Who is I-W-I-T? Is someone here with me? The one written on the blacked-out screen without a camera. Who is I-W-I-T? Do you hear? Okay. Fine. Ah, peace be upon you. All right, I just wanted to make sure someone was there. In any event, let’s continue. So the Talmud there discusses what “properly” means. So here, the Talmud itself is hesitating over the question: what is called “properly”? And the Talmud says like this: “What is proper and what is improper? A door that can withstand a normal wind—this is proper. One that cannot withstand a normal wind—this is improper.” This criterion, again, doesn’t resort specifically to the “reasonable person”; rather, it does try to give a criterion on the substance of the matter. But again, there is some parameter here that is subject to the assessment of the judges, to the valuation of the judges. A door that can withstand a normal wind. The question is: what is a normal wind? A wind that appears every day? A wind that appears once a week? What—how common does it have to be in order to be considered a normal wind? In New Orleans, yes, every so often there are hurricanes. Okay? Is a hurricane there a normal wind? That’s once every few years, even every few decades. I don’t know. Meaning, the question is what frequency is required for something to count as common. But still, it advances us in some way; it gives us some kind of criterion. If the door can withstand a wind that, more or less, you can expect to occur, that is proper guarding, and if not, then not. As I said earlier, in any case we’re not going to find sharp definitions here. Okay? Now. The Talmud starts checking this in light of a dispute among the Tannaim. There is a three-way Tannaitic dispute over how much the ox has to be guarded so that it won’t cause damage. Our Talmud wants to attribute our Mishnah—the Mishnah at the opening of the chapter “Ha-Kones”—to the view of Rabbi Yehudah. But let’s begin with the background to the matter. So there is a Tannaitic dispute regarding the guarding of things that cause damage; that’s on page 45. But before that we need to enter the question of an innocuous ox. I mentioned the dispute on page 15a. The Talmud there says like this: “The injured party and the damager with respect to payments. It was stated: half-damages. Rav Pappa said: it is compensation. Rav Huna the son of Rav Yehoshua said: it is a penalty. Rav Pappa said: it is compensation, because he holds that ordinary oxen are not presumed to be guarded, and in principle he ought to pay the whole amount, but the Merciful One had pity on him because his ox has not yet become forewarned, if his ox has not yet become forewarned. Rav Huna the son of Rav Yehoshua said: it is a penalty, because he holds that ordinary oxen are presumed to be guarded, and in principle he should not pay at all, but the Merciful One penalized him so that he should guard his ox.” So there is a dispute among the Amoraim here. Rav Pappa says that half-damages for an innocuous goring ox is compensation, not a penalty. What does compensation mean? It means damages, reimbursement. So why only half? Really you should have compensated the whole thing. He says: true, in principle you should have compensated the whole thing, but your fault is reduced fault. Why? Because all in all the ox is innocuous; you were not supposed to anticipate that this ox would gore; it has no history of goring. And therefore they forgive you, or waive part of the matter for you—or in the formulation I used earlier, they divide the responsibility or the consequences between the injured party and the damager. Neither of them is guilty, neither the injured party nor the damager. Right? Or at least not fully guilty. Okay? So I’m not all right—in principle the damager should have been obligated—but he too is not fully guilty, so we obligate him for half. That will encourage him to guard his ox—notice, even though the ox—wait, that was when I was talking about the penalty just now, right? Sorry, no—I was talking about compensation. Not that it will encourage him—sorry, I was talking about compensation. So compensation in principle assumes that an innocuous ox is not presumed guarded; there is fault on the part of the owner, but not full fault. And because of that, you pay only half and not full damages. That’s Rav Pappa. Rav Huna the son of Rav Yehoshua says that the half-damages of an innocuous goring ox is a penalty. What does penalty mean? So the Talmud explains in several places, and also the medieval authorities (Rishonim)—Rashi on page 3, for example, talks there about pebbles kicked up—so the definition of a penalty is when you do not pay the value of what you damaged, or the value that is the basis for the payment. Okay? Or when the amount is fixed. When the amount is fixed, then by definition it isn’t that, because a fixed amount is never parallel to the basis for payment, because if it is more, or less, or a fixed sum, then that thing is a penalty. Now with half-damages, ostensibly, you are not paying what you ought to have paid. So on the face of it, by definition that should have been a penalty, because otherwise you would pay full damages. But that’s not precise. Because when Rav Pappa says it is compensation, what he is really saying is: you have reduced fault, and therefore the duty of compensation imposed on you is partial. That really is what you have to compensate; it is a duty of compensation, except that the duty of compensation is a function of how guilty you are. If you are guilty only in a reduced way, then the duty of compensation imposed on you is also reduced, and therefore it is still compensation. Rav Huna the son of Rav Yehoshua claims no. Since ordinary oxen are presumed to be guarded—the ox is innocuous; a forewarned ox is already different, but an innocuous ox is presumed guarded—you are in principle under compulsion; you were not supposed to foresee that the ox would gore. The fact that the ox gored means that in principle you should have been exempt. The Torah nevertheless wanted to motivate you to guard the ox anyway, even though in principle you could have left it unguarded, and therefore it penalizes you with payment of half the damages. Okay, that is the Amoraic dispute on page 15.

[Speaker E] The term “ordinary oxen are presumed to be guarded” isn’t clear to me. Does it mean they guard themselves? That the ox guards itself from harming someone else? Yes.

[Rabbi Michael Abraham] Is that what it means? What does it mean, “guards itself”? It doesn’t cause damage.

[Speaker E] So “presumed to be guarded” is just another way of saying “an ordinary ox doesn’t cause damage”?

[Rabbi Michael Abraham] Yes. Okay. That is the dispute among the Amoraim. As a matter of Jewish law, we rule like Rav Huna the son of Rav Yehoshua, that half-damages is a penalty. Okay? That is the law. By the way, just parenthetically, this is a penalty that, according to at least some of the medieval authorities (Rishonim), is an unusual penalty. It’s a kind of—it is almost compensation in certain respects. At least it may be that one can actually seize payment for this penalty; other penalties, it is not clear that one can seize. There is a dispute about this nowadays, when we do not adjudicate penalty law. There are disputes about it. The medieval authorities (Rishonim)—and the reason for this, it seems to me, is that there is no disagreement here. The disagreement between Rav Pappa and Rav Huna the son of Rav Yehoshua is not a disagreement about reality. It is not a disagreement over whether these oxen in fact generally do damage or do not do damage. Everybody is clear that such oxen cause damage, say, in twenty percent of cases—I’m just throwing out a number. There is no disagreement. Rather, the question is whether twenty percent is something one must be concerned about or not. Therefore it is a normative dispute, not a factual dispute. Rav Pappa claims that one must be concerned about such a thing; twenty percent is not a negligible percentage. Twenty percent of the time it will gore; one out of five opportunities, basically, it is expected to gore. So that means you cannot ignore that possibility; you have to guard it. Except that because it is a low percentage, they let you off partly. Rav Huna the son of Rav Yehoshua does not disagree with him about the facts. The facts are that in twenty percent of cases it will gore. He only argues that twenty percent is good enough to exempt you from guarding, and other people should be careful. Other people know that innocuous oxen can also gore from time to time, and that the owner does not guard them, so they should know that they too need to keep an eye out, they need to pay attention. Therefore according to Rav Huna the son of Rav Yehoshua, that very same factual situation is depicted differently in halakhic / of Jewish law terms. Meaning, the same factual assumption is interpreted in halakhic / of Jewish law terms once as compensation and once as a penalty. It is not, simply speaking, a disagreement about reality. I think that is the reason why, according to Rav Huna the son of Rav Yehoshua, even though it is a penalty, it is a somewhat different kind of penalty. It is a penalty that looks very similar to ordinary monetary law. It is not the same thing as the other penalties, at least according to some of the medieval authorities (Rishonim). It is not the same thing as the other penalties, because even he understands that there is a certain dimension of fault here. He only claims that the dimension of fault does not pass the threshold that allows us to demand payment from him. That’s all. But a reasonable person ought to understand that if you have an ox and there is a twenty percent chance it will gore, then keep an eye on it. You cannot totally ignore the possibility that it will gore, and Rav Huna the son of Rav Yehoshua would agree to that as well. That is only a side note, because as you know, in the yeshivot they are accustomed to say that there is no disagreement about reality, because otherwise you cannot say, “These and those are the words of the living God.” In reality, one is right and the other is wrong—how can you say, “These and those are the words of the living God”? That is nonsense. Clearly there are disagreements about reality. But in many, many places where it looks like a disagreement about reality, there can indeed be an approach like this. And here, although ostensibly it is a disagreement about reality—whether ordinary oxen are presumed to be guarded or not presumed to be guarded—whether this is a dispute about the psychology of innocuous oxen, or about the percentage of innocuous oxen that are really prone to gore—the claim I want to make is no: it can be translated into a normative dispute. It is not a dispute about facts; it is a normative dispute. I am not saying this everywhere, and I am not claiming there is no such thing as a disagreement about reality, because that is not true. What I am claiming is that not every dispute that looks like a factual dispute really is one. Here, for example, I think it is not a factual dispute.

[Speaker D] You could also explain it as a dispute about whether there is a presumption, because “presumption” is a legal concept after all.

[Rabbi Michael Abraham] That’s a pretty similar formulation, yes? All in all, the three-time goring—the Talmud itself compares it to a presumption, yes, and “this shall serve as testimony” at the beginning of the chapter on presumptive ownership of houses, and so on. Fine. In any event, the Mishnah on page 45—that was just background so we’ll have it in the background, the dispute among the Amoraim regarding an innocuous goring ox. Fine. Now we move to the Mishnah on page 45b. It says like this: “If its owner tied it with a rope and locked it before it properly, and it went out and caused damage—whether innocuous or forewarned, he is liable; and the innocuous ox pays half-damages and the forewarned ox pays full damages.” Meaning that if you lock it properly and it goes out and causes damage, you are liable, whether it is an innocuous ox or a forewarned ox. Notice this is against our Mishnah, right? In our Mishnah it says that if he locked it properly and it went out and caused damage, he is exempt. Here it says he is liable—these are the words of Rabbi Meir. That is Rabbi Meir. Rabbi Yehudah says: “An innocuous ox is liable and a forewarned ox is exempt, as it says, ‘and its owner did not guard it’—but this one was guarded.” Yes, with an innocuous ox, if you locked it properly you are liable; with a forewarned ox, if you locked it properly you are exempt, because all in all it was guarded. What it says, “and its owner did not guard it,” is said about a forewarned ox; that verse deals with a forewarned ox. So if it says, “and its owner did not guard it,” that means you pay only if your ox was not guarded. By the way, that is the source for our Mishnah, which says that there is a duty to guard and that there is a level of guarding from which point on, if you did it, you are exempt from payment. How do we know that? From the fact that in the Torah it says, “and its owner did not guard it.” Meaning, when do you pay? Only if you did not guard it. The Talmud says in the Mishnah—sorry—so if that’s the case, if you locked it properly, then it was guarded, and therefore you are exempt. And what about an innocuous ox? Regarding an innocuous ox it does not say “and its owner did not guard it,” and that is written only regarding a forewarned ox. He’s meanwhile just reading the Mishnah. Rabbi Eliezer says—a third opinion—“It has no guarding except a knife.” No level of guarding exempts you from payment. Even if you slaughtered the ox and it went and caused damage—yes, obviously by way of exaggeration. Meaning, whatever you do does not matter at all. Only if you killed it and prevented this can you relax. If not, know that whatever you do, if the ox goes and causes damage, you are liable to pay. So there are three Amoraic opinions—sorry.

[Speaker E] Even an innocuous ox? Rabbi Eliezer too—“it has no guarding except a knife”? Rashi on the Mishnah says that is only for a forewarned ox. That we are talking about a forewarned ox.

[Rabbi Michael Abraham] The straightforward reasoning is that it is only for a forewarned ox. And why? Because with an innocuous ox, at least according to the practical Jewish law ruling, we are talking about half-damages, which is a penalty. It is a penalty in order to prod you to guard the ox. So what do you want? Here I did guard it. What is the point of the penalty? The point of the penalty is to make sure you guarded it. Meaning that if you guarded it, there is no reason to penalize me, right? The whole reason to penalize me is to make sure that I guard it. If I am liable for the penalty even though I guarded it, that of course lowers my motivation to guard, because I will be liable in any case. Not entirely, of course, because if I guard it then the likelihood of damage goes down. But still. Therefore the reasoning says—although it does not appear explicitly in the Talmud—the reasoning says, and that is what the medieval authorities (Rishonim) here write, that when Rabbi Eliezer says “it has no guarding except a knife,” he is talking about a forewarned ox. Regarding an innocuous ox, he probably holds like Rabbi Meir that it requires superior guarding. Inferior guarding is not enough. But with superior guarding you would indeed be exempt. In the Talmud there on page 45, the Talmud brings a fourth view that does not appear in the Mishnah. “It was taught: Rabbi Eliezer ben Yaakov says: whether innocuous or forewarned, if it was guarded with inferior guarding, he is exempt. What is the reason? He agrees with Rabbi Yehudah, who says that for a forewarned ox inferior guarding is sufficient, and he derives goring in the case of an innocuous ox from goring in the case of a forewarned ox.” All right? He agrees with Rabbi Yehudah that for a forewarned ox inferior guarding is enough, and he has a verbal analogy of “goring, goring,” from an innocuous ox to a forewarned ox, and therefore for both of them inferior guarding suffices. In fact, what in our terms is called “properly”—in our Mishnah it says “and he guarded it properly.” Here too in this Mishnah it says “properly.” You see? “Its owner tied it with a rope and locked it before it properly.” What does the term “properly” mean? Now we already have a language. We asked what the term “properly” means. Now we have a language. There is inferior guarding, superior guarding, and “it has no guarding except a knife.” What does “he guarded it properly” mean?

[Speaker E] Inferior guarding.

[Rabbi Michael Abraham] Inferior. Right, it is explicit in the Talmud. How do I know that?

[Speaker E] Because Rabbi Eliezer ben Yaakov agrees with Rabbi Yehudah. Right.

[Rabbi Michael Abraham] “Whether innocuous or forewarned, if it was guarded with inferior guarding, he is exempt.” What does exempt mean? It means: he locked it properly. That is called inferior guarding, and both for an innocuous ox and for a forewarned ox he is exempt. Meaning, “he locked it properly” means inferior guarding. I’m simply trying to decode the terms in the Mishnah in light of what is written in the Talmud. The Talmud assumes this; it is in the subtext of the Talmud. It does not even say it. But it is clear that this is what it means. Let’s summarize the views we’ve seen for a moment. So we really have four views. Rabbi Meir says that both for an innocuous ox and for a forewarned ox, superior guarding is required in order to be exempt. Rabbi Yehudah says: for an innocuous ox, superior; for a forewarned ox, inferior. Rabbi Eliezer says: for an innocuous ox, superior; for a forewarned ox, maximal—meaning there is no exemption. Okay? Rabbi Eliezer ben Yaakov says: for both, inferior. Those are the four views. Now, superior guarding means that in principle the novelty of our Mishnah still exists: that there is a level of guarding from which point on you are exempt from payment. The claim is only that it is not inferior guarding but superior guarding. Rabbi Eliezer does not accept even that itself—at least regarding a forewarned ox. Rabbi Eliezer claims there is no such thing: “it has no guarding except a knife.” Or in other words, probably in the terminology of the introduction I gave at the beginning of the class, Rabbi Eliezer probably understands—at least regarding a forewarned ox—that the obligation to pay is an obligation of responsibility, and therefore no level of guarding you present will exempt you from paying. You are responsible for what your animal did, in the case of a forewarned ox. Okay? That is what he says.

[Speaker E] So the whole Mishnah—our Mishnah—is definitely not like Rabbi Eliezer. The Mishnah in Ha-Kones is definitely not like Rabbi Eliezer.

[Rabbi Michael Abraham] We’ll get to that; the Talmud itself talks about Ha-Kones in that regard. The Talmud says that our Mishnah is Rabbi Yehudah. But we’ll see in a moment. After that. People disagree with that, but we’ll see later. Not in a moment—we’ll see later on. In any event, I just want to say: this is our infrastructure; we need to understand it. We have four views here. In principle, only according to Rabbi Eliezer—Eliezer—there is no basic novelty of our Mishnah at all. The novelty says that there is a level of guarding that, if you do it, exempts you from payment. Rabbi Eliezer does not accept that. There is no such level. No matter what happened, if your ox gored, you are liable to pay.

[Speaker D] Why specifically Rabbi Eliezer? What? Why is it certain that Rabbi Eliezer means there is no level of guarding at all?

[Rabbi Michael Abraham] “It has no guarding except a knife.”

[Speaker D] No, because precisely from the wording “it has no guarding except a knife,” it sounds like for him a knife does count as guarding.

[Rabbi Michael Abraham] A knife means to slaughter it—what do you mean?

[Speaker D] Right, but I would say that if a person did that, meaning,

[Rabbi Michael Abraham] But if he slaughtered it, then the animal cannot cause damage.

[Speaker D] No, that I understand, fine—but suppose a person did everything he could to slaughter it immediately and it got away from him. That’s the question. I understand that if you say this is a matter of responsibility, then it has nothing to do with anything. But if we choose to explain him as still thinking that one must guard, and he agreed with the law that what is considered properly guarded for him is this proper level…

[Rabbi Michael Abraham] First of all, I don’t know anyone who explains it that way, and I also don’t think that is the plain meaning. When he says “it has no guarding except a knife,” the meaning is: it has no guarding, period. If you slaughtered it, that is the only way you can relax.

[Speaker D] No, I understood that explanation. I want to know—okay—if there is a reason not to explain it that way, because I would say not “it has no guarding except a knife”; I would say he is liable, regardless of whether you guarded it or not. That is what I mean.

[Rabbi Michael Abraham] It has no guarding…

[Speaker D] But there would be a much better way to say that.

[Rabbi Michael Abraham] No, so what you are saying—there would be a much better way to say it: unless he was under absolute compulsion. “It has no guarding except a knife” is extreme; it means only if you killed it. That is exactly saying what I am saying.

[Speaker D] No, but that is the guarding from his perspective—what do you mean?

[Rabbi Michael Abraham] No, that is not guarding; he killed it. Right, so then there is no damage—he prevented the damage actively.

[Speaker D] That depends on another question: whether what Rabbi Eliezer says is a recommendation to do that with forewarned oxen. Apparently yes. I think the discussions depend on one another. It could be that this is what he thought one should do, and therefore whoever did not do it is guilty. Meaning, if your ox gored three times, that’s it—slaughter it; don’t start telling me you’re guarding it.

[Rabbi Michael Abraham] That’s another discussion that we’ll get to later on; it’s a dispute among the medieval authorities (Rishonim).

[Speaker D] I think they are connected to one another, because if that really is the obligation, then I understand why you can impose responsibility on anyone who did not do that.

[Rabbi Michael Abraham] Certainly true. I claim that even if it is not an obligation but only the threshold from which point on you are exempt, even then it is a maximal threshold.

[Speaker D] Yes, I understand. The question is why one must explain it that way.

[Rabbi Michael Abraham] That is the straightforward plain meaning. According to your view, it should have said, “it has no guarding unless he is under absolute compulsion.” It doesn’t say that; it says, “it has no guarding…”

[Speaker D] No, but he also wanted to teach you something else—not only “unless he is under absolute compulsion,” but also what one should do, and therefore anyone who did not…

[Rabbi Michael Abraham] He doesn’t need to teach me anything additional. The moment he said I am liable to pay in any case, he also said that.

[Speaker D] No, but the question is what the definition of compulsion is. It’s not in any case—only if you are not under compulsion. And from his perspective, if you didn’t slaughter it then you are not under compulsion, and that is what he wanted to explain.

[Rabbi Michael Abraham] Fine, that’s obvious; we are not arguing about that. That is obvious. I am only saying that even on the side that he does not require slaughtering, the meaning is still as I say—that is our dispute. On the side that he requires slaughtering, obviously I’m right. But on the side that he does not require slaughtering, and it only sets the threshold from when one has to pay, but you do not need to slaughter—it is possible to take the risk—even then I claim that what Rabbi Eliezer says is what I am saying.

[Speaker C] Meaning—wait a second—I think I…

[Speaker D] I got a little confused here in the whole calculation, but…

[Rabbi Michael Abraham] It’s a simple matter. What I am claiming is the following. We will see later on that there is a dispute among the medieval authorities (Rishonim) over whether according to Rabbi Eliezer he really does require you to slaughter it, or not—or whether it only means that if you slaughtered it, that is the only way you can relax. That’s all, but it does not mean you have to slaughter it. Okay? I say that according to both possibilities, the meaning is that you will always be liable to pay. Always. There is no level of guarding that exempts according to Rabbi Eliezer. You claim not. So I say this: if according to Tosafot you really are in fact obligated to slaughter it, then you agree with what I’m saying.

[Speaker D] Why? If I am in fact obligated to slaughter it, then excellent. Then I understand Rabbi Eliezer as saying that you are obligated to slaughter it, and therefore if you did not slaughter it you are liable.

[Rabbi Michael Abraham] Right. So in effect what you are saying is that he is always liable.

[Speaker D] Not always, no. If I tried to slaughter it and didn’t manage, then I was under compulsion.

[Rabbi Michael Abraham] What does “I tried to slaughter it” mean? There is no such thing as “I tried to slaughter it”; you have to slaughter it.

[Speaker D] What do you mean? Of course—what, it escaped from my hands.

[Rabbi Michael Abraham] It escaped from you—you have a problem.

[Speaker D] That’s what you say.

[Rabbi Michael Abraham] No, if it escaped from you, then you didn’t slaughter it. Come to it at night and slaughter it.

[Speaker D] I tried to slaughter it—what am I guilty of? If I didn’t try, then on that you can blame me.

[Rabbi Michael Abraham] That itself is your negligence—that you didn’t slaughter it; that too is negligence.

[Speaker D] Not true. I made every effort to slaughter it. If I didn’t, then you are right. But if I made every effort to slaughter it and it ran away.

[Rabbi Michael Abraham] Very strained. I don’t think there is any opinion like that, and it sounds utterly unreasonable to me. But fine, okay. So that is Rabbi Eliezer. The other Tannaim, of course, do accept the first novelty of the Mishnah—that there is a certain level of guarding that exempts you from payment. They disagree among themselves over what that level of guarding is, both for the innocuous ox and for the forewarned ox. Okay? Whether it is inferior guarding or superior guarding. But notice, there is another point here. According to Rabbi Yehudah, the order is that an innocuous ox requires a higher level of guarding than a forewarned ox in order to be exempt, which is seemingly against logic, because an innocuous ox is presumed guarded—certainly according to the practical Jewish law ruling, where we rule like Rav Huna the son of Rav Yehoshua—so how can it be that it specifically requires superior guarding? We’ll get to that later.

[Speaker E] But you could say it is a decree of Scripture—there’s no choice. The question is who says it has to fit logic?

[Rabbi Michael Abraham] “A decree of Scripture” explains nothing. When Scripture decrees something, there has to be some explanation behind it. It may be that you can say we do not understand the explanation, but there has to be some explanation there. I’ll suggest one; I think I do understand the explanation. In any event, that is one direction: Rabbi Yehudah says that an innocuous ox requires a higher level of guarding than a forewarned ox. Rabbi Eliezer ben Yaakov and Rabbi Meir equate them; we’ll see later too that there is simply a verbal analogy, so the Torah itself equates them. So that doesn’t say much, because once you equate them, one of them could still be more severe, but we nevertheless require the same level of guarding for both. But notice that according to Rabbi Eliezer, the hierarchy really is the opposite of Rabbi Yehudah—in other words, an innocuous ox requires less guarding than a forewarned ox. In that sense, there are many differences among these four Tannaim, and we have to remember all of them. On the one hand, there is really only one Tanna here—if I’m right and not Binyamin—there is only one Tanna who says: I do not accept at all that there is some exempting level of guarding. No—there isn’t; you are always responsible. This is an unconditional responsibility obligation. The other three Tannaim say: it is conditional; there is an exempting level of guarding. They disagree over what that level of guarding is—that is a second dispute among the Tannaim, a dispute within the latter three Tannaim. There is another dispute, between Rabbi Yehudah and Rabbi Eliezer, over what the hierarchy is: does an innocuous ox need to be guarded more than a forewarned ox, or less than a forewarned ox? That is really from one extreme to the other. In Rabbi Eliezer ben Yaakov and Rabbi Meir you cannot draw any conclusion, because they say it is the same thing, so it could fit Rabbi Yehudah, and it could fit Rabbi Eliezer with some difference, because there is a verbal analogy that nevertheless equates them even though one is more severe—so that is no indication of anything. But Rabbi Yehudah and Rabbi Eliezer are really opposite views. Okay? So that is what we need to remember. We’re going to take a three-minute break now. I told you that usually we’ll do this to refresh ourselves. I also expect feedback from you—I told you—feedback, so that you can tell me whether this is okay, whether the class is too long, whether a break in the middle helps, doesn’t help, suggestions for improvement, and so on. Okay? So three minutes and we’ll come back. Get yourselves a cup of coffee, wash your face. My father talks about this, it’s…

[Speaker B] He says there is not a single person in the world who thinks one does not need to study Torah. There is not a single person in the world who believes one does not need to study Torah. The whole issue is time, vitality, intensity. And Tovi says this is Torah study. Torah means Torah study. Fine. What is vitality? Vitality is vitality. Time. Vitality. There is not a single person in the world who won’t study; he’ll just study after the mourning week. So I—so I can live with that. That’s not true, that’s not true, that’s not true. Help me with the past. Taking it out of context. It’s here, it’s here. They won’t do it, they won’t do it. All the years he did this.

[Rabbi Michael Abraham] Listen to me, what matters to me is…

[Speaker B] that he didn’t want to get involved with those people. So God will work it out, God will save him. He’s not messed up. That’s not true. A quarter of an hour. Not okay, not okay, impossible. Half a year. No, it’s not okay. Impossible. There isn’t a single person in the world who really… Your father. Whoever has one hundred wants… one hundred.

[Rabbi Michael Abraham] Okay. We continue. Friends, we’re back. Turn your cameras on, come back to us. Okay, I’m continuing. So now the Talmud there on page 45—first, some background for our topic. The Talmud there on page 45 goes on to clarify the source of the Tannaim. “What is Rabbi Meir’s reason? He holds that ordinary oxen are not presumed to be guarded, and the Merciful One said that the innocuous ox should be liable, so that it should require inferior guarding. Then the Merciful One said, ‘and its owner did not guard it,’ regarding a forewarned ox, so that it should require superior guarding, and he derives goring in the case of the innocuous ox from goring in the case of the forewarned ox.” Meaning, the Talmud says this: Rabbi Meir, I remind you, requires superior guarding both for an innocuous ox and for a forewarned ox. Fine? So his assumption is that ordinary oxen are not presumed to be guarded. Fine? So now the Talmud says: “And the Merciful One said that the innocuous ox should be liable, so that it should require inferior guarding.” What does that mean? We need to obligate the innocuous ox for half-damages so that people will guard it with inferior guarding. But that’s a little strange, because apparently I would have expected it to say here that ordinary oxen are presumed to be guarded. Right? Because what did we see on page 15? We saw there that if ordinary oxen are presumed to be guarded, then the purpose of the penalty is to make sure the person will guard it. If ordinary oxen are not presumed to be guarded, then you don’t need penalties, because obviously he will guard it, since otherwise he will have to pay the full price. At most they gave him a discount. But this wording—“so that it should require guarding,” they obligate him “so that it should require inferior guarding”—that wording fits Rav Huna the son of Rav Yehoshua, according to whom ordinary oxen are presumed guarded. In a moment we’ll see that Rashi comments on this, and the medieval authorities (Rishonim) deal with it here. In any case, that is what the Talmud says. According to Rabbi Meir, an innocuous ox needs inferior guarding. Yes? “Ordinary oxen are presumed guarded” or “not presumed guarded”—that refers to the innocuous ox. Okay? “Then the Merciful One said, ‘and its owner did not guard it,’ regarding a forewarned ox.” So why is “and its owner did not guard it” written regarding a forewarned ox? “So that it should require superior guarding”—to teach me that for a forewarned ox one needs superior guarding. What is the subtext? Notice, there is some redundancy here, right? Because if you tell me that an innocuous ox needs inferior guarding, and nothing had been written about a forewarned ox, what would I think? That a forewarned ox also needs inferior guarding, right? Because a forewarned ox is at least like an innocuous ox. Remember my remark about the hierarchy? That the guarding for a forewarned ox has to be at least like the guarding for an innocuous ox. That is what logic says. In Rabbi Yehudah we see the opposite. But at the moment we are explaining Rabbi Meir. So from Rabbi Meir’s perspective, a forewarned ox requires guarding at least like that of an innocuous ox. So if an innocuous ox needs inferior guarding, and there were nothing said about a forewarned ox, I would say that a forewarned ox also needs inferior guarding. Now the Torah comes and says, “and its owner did not guard it,” and so it comes to teach that with a forewarned ox one apparently needs superior guarding. So at this point we have: innocuous— inferior guarding; forewarned— superior guarding. “And he derives goring in the case of the innocuous ox from goring in the case of the forewarned ox.” Now the verbal analogy comes and takes me back and says: with an innocuous ox too, you need superior guarding like with a forewarned ox, because there is a verbal analogy between them. Therefore in the bottom line, according to Rabbi Meir, both innocuous and forewarned require superior guarding. By the way, why do we make the verbal analogy in this direction and not the opposite direction? I might have said: let’s compare the forewarned ox to the innocuous ox so that both require inferior guarding. Why compare the innocuous ox to the forewarned ox so that both require superior guarding? It’s always a question with a verbal analogy: whom do we compare to whom?

[Speaker E] If both require inferior guarding, then there would be no need to write anything about the forewarned ox, and no need for a verbal analogy at all.

[Rabbi Michael Abraham] Exactly. If both required inferior guarding, then it would have been enough to state the innocuous ox, and there would have been no need to write “and its owner did not guard it” at all, and then neutralize it with a verbal analogy. Don’t write it, and that’s it. Okay. Therefore, the direction of the verbal analogy must be from the forewarned ox to the innocuous ox. And if the forewarned ox requires superior guarding, then so does the innocuous ox. So notice: in the end, according to Rabbi Meir, both innocuous and forewarned require the same level of guarding. But Rabbi Meir’s logic is like Rabbi Eliezer and not like Rabbi Yehudah. Meaning that a forewarned ox is more severe than an innocuous ox. Right? That is the logic. There is just a verbal analogy that says: fine, but nevertheless make them equal. But not the reverse. Because if we reversed it, that would not work; equating them does not contradict the hierarchy. I may say that the more serious thing must be guarded at the same level as the less serious thing—there is no problem. But I cannot say that the less serious thing has to be guarded more than the more serious thing. That makes no sense. Right? Therefore Rabbi Meir, when in the end I positioned the four Tannaitic views on three axes—one axis was whether there is any guarding that exempts; according to Rabbi Meir certainly yes. The second axis was what level of guarding it is; there we saw superior and superior according to Rabbi Meir. The third axis is which is more severe. On that axis, Rabbi Meir belongs to the camp of Rabbi Eliezer and not Rabbi Yehudah. Right? Because Rabbi Meir is among those who hold that the guarding of a forewarned ox must be at least like that of an innocuous ox, or more—certainly not less. Therefore if “and its owner did not guard it” had not been written, I would have learned from an innocuous ox to a forewarned ox that even with a forewarned ox inferior guarding is enough. Good. So we’re done with Rabbi Meir. “Rabbi Yehudah holds,” and I continue reading the next passage, “that ordinary oxen are presumed to be guarded.” Again, it flips here. “The Merciful One said that the innocuous ox should pay, so that it should require superior guarding.” Basically the oxen are presumed guarded, so why obligate the innocuous ox to pay? In order to require superior guarding. Again, this makes no sense according to what we saw on page 15. Because if ordinary oxen are presumed guarded, then saying that the innocuous ox pays should do the opposite: it should encourage you to guard it with inferior guarding, because otherwise you would think you need not guard it at all. So that doesn’t fit the language of page 15. But let us ignore that for the moment. Practically speaking, Rabbi Yehudah says that with an innocuous ox you need superior guarding. “Then the Merciful One said, ‘and its owner did not guard it,’ regarding a forewarned ox, so that we should impose superior guarding upon it.” Fine? Now what does that mean? If “and its owner did not guard it” had not been written regarding a forewarned ox, what would I have thought? According to the hierarchy of Rabbi Meir and Rabbi Eliezer, if an innocuous ox requires superior guarding, then a forewarned ox certainly requires superior guarding. Right? So why was “and its owner did not guard it” needed in order that we should guard it with superior guarding? Look at the continuation. “It is an inclusion following an inclusion, and an inclusion following an inclusion can only indicate an exclusion. Scripture excluded superior guarding.” What does that mean? Really, at the basic level, it appears from here at least that Rabbi Yehudah also belongs to the camp that says a forewarned ox is in principle more severe than an innocuous ox. And in principle, if we knew that an innocuous ox requires superior guarding, we would understand on our own that a forewarned ox also requires superior guarding. However, the Torah now adds “and its owner did not guard it” regarding a forewarned ox, and again tells us that one must guard a forewarned ox. Why? I would have known that even without this. Apparently this is an inclusion following an inclusion, and an inclusion following an inclusion can only indicate an exclusion. Notice: if Rabbi Yehudah’s logic were that a forewarned ox requires less guarding than an innocuous ox, then there would be no question why “and its owner did not guard it” is needed regarding a forewarned ox. It is needed to tell you that even with a forewarned ox superior guarding is required. What is the problem? Because without that I would not know it, since with a forewarned ox you cannot derive it by an a fortiori inference from an innocuous ox. What we see here is that Rabbi Yehudah also accepts the basic conception of Rabbi Meir and Rabbi Eliezer—that a forewarned ox is in principle more severe than an innocuous ox. And if an innocuous ox requires superior guarding, then a forewarned ox also requires superior guarding. After that, the Torah writes “and its owner did not guard it” in order to teach superior guarding, which is superfluous. Why do I need the second inclusion? It is an inclusion following an inclusion; apparently it comes to exclude. It comes to say that with a forewarned ox one needs only guarding—that inferior guarding is sufficient.

[Speaker F] In a sort of upside-down way—and that’s why Rabbi Yehudah exempts there.

[Rabbi Michael Abraham] Therefore Rabbi Yehuda is satisfied with lesser guarding: if you kept a lesser level of guarding, then you’re exempt. And if you say—so asks the Talmud—goring in the case of a tam should be compared to goring in the case of a mu’ad, then why not make the verbal analogy that Rabbi Meir made? So the Talmud says: the Merciful One excluded it with the phrase, “and he did not guard it”—this one and not another. The exclusion comes to say that here you should not make that verbal analogy, because if you do make the verbal analogy, then what do you need this exclusion for? And doesn’t he need it for a prohibition? No matter—if so, the Merciful One should have written “and he did not guard,” so why “and he did not guard it”? This one and not another. By the way, this prohibition here apparently is not actually an ordinary prohibition, according to most of the medieval authorities (Rishonim), but let’s leave that aside for now. So notice that even according to Rabbi Yehuda, if I now do the more precise analysis, his basic conception is also like Rabbi Meir and Rabbi Eliezer: that a mu’ad ox requires more guarding than a tam ox. But the verses force me into the opposite hierarchy. So in pure logic he also agrees with them, but that still doesn’t exempt us from explaining it. Fine, but bottom line, the Torah tells us to reverse it: a tam ox needs superior guarding; for a mu’ad ox, lesser guarding is enough. True, we took a very winding path before reaching that result, but that is still the result. What is the logic behind it? That’s the question I asked earlier. But the question only gets sharper in light of the fact that Rabbi Yehuda himself, in the course of his derivation, accepts that a mu’ad ox is more severe than a tam ox. But somehow all the derivations here force him to a conclusion that is the opposite of that logic. And now we have to understand what that means, why it’s really like that. By the way, one more note—I occasionally insert broader methodological comments. Earlier Doron suggested: fine, maybe it’s just a scriptural decree. A scriptural decree? So I said that even a scriptural decree requires explanation. What do I mean? First, because as Maimonides writes in the Guide, when the Holy One, blessed be He, decrees something, there is apparently some reason for it. He doesn’t do things without a reason. It may be that we won’t succeed in understanding it, fine, but that doesn’t mean we shouldn’t look for a reason, because there is a reason; at most we just won’t find it. Another thing I want to say is that the whole point is this: here, for example, when we do or don’t derive the reason of the verse—yes? let me first speak generally. When we do or don’t derive the reason of the verse, when we’re talking about a law written explicitly in the Torah, we do not derive the reason of the verse. But if there is a law that the sages learned from an exposition, there is no rule saying we do not derive the reason of the verse. Why? Because the sages who derived it from exposition also relied on some kind of reasoning. There is no exposition without reasoning. Contrary to what people think, an exposition is never a scriptural decree in the sense that it contains no reasoning. Take, for example, what Maimonides cites: “You shall fear the Lord your God”—the Talmud says, “You shall fear the Lord your God” includes Torah scholars. Fine? The word “et” comes to include Torah scholars. Now I ask: why not include microphones? “You shall fear the Lord your God”—to include microphones, or geese? I don’t know.

[Speaker C] Because that’s not similar in idea.

[Rabbi Michael Abraham] Because you have to apply reasoning and ask yourself what it makes sense to compare to fear of the Holy One, blessed be He—what, or what is least implausible to compare? Okay? And then I say: apparently Torah scholars. So behind every exposition there is always reasoning. Always. There is no exposition without reasoning.

[Speaker D] Unless it’s just an asmachta-style exposition; that kind of supporting exposition can be without reasoning, just attached to the verse.

[Rabbi Michael Abraham] Behind every exposition there is reasoning. That’s the point. There is no exposition—every hermeneutic principle we know is always just a trigger. Say there is a verbal analogy, so I compare a tam ox to a mu’ad ox. In regard to what? In regard to maybe this applies only to an ox; in regard to maybe a mu’ad ox also requires only three times; and after that maybe he would pay double only from the seventh goring onward; maybe he’d pay double the damage—keep going. You can do lots of things, right? How do I know with respect to what to compare? Now I’m supposed to apply reasoning and see with respect to what to compare, or how to compare, and what not to compare. Okay? Or if “et” comes to include, I have to apply reasoning and say, okay—but what does it include? Or if there’s a general-and-specific formulation, so it comes either to include or to exclude; I ask myself what it comes to include or what it comes to exclude. It’s all reasoning, only reasoning. There is no exposition without reasoning. Therefore all these concepts of scriptural decrees and all these calculations—you can sometimes see this here and there in the later authorities (Acharonim), I don’t remember if in the medieval authorities (Rishonim)—you sometimes see that they treat an exposition as a kind of scriptural decree. In my opinion that’s simply a mistake. There is no such thing. An exposition is never a scriptural decree. Because if it were a scriptural decree, they wouldn’t need to expound it. It can be a scriptural decree in the sense that maybe I would not have said this law on my own, but once there is already an exposition, reasoning tells me to take this from the exposition and not something else. Because otherwise there’s no reason why the expositor chose דווקא this result and not other results, and there is always some reason behind it. So in our case, for example, when we say that a double inclusion can only come to exclude, then we come to exclude the mu’ad ox. Exclude it from what? Maybe exclude it down to three-quarters damages, half damages, exclude it regarding the level of guarding, exclude it in some other way, that they wouldn’t need to guard it at all. We somehow need that even after I have the rule that a double inclusion only comes to exclude, the expositor still has to have some idea what to exclude and by how much. And that requires explanation. And if, at the level of guarding, my logic says that a mu’ad ox must require at least as much guarding as a tam ox, then when they tell me that a double inclusion only comes to exclude, I would have excluded something else—not the level of guarding. Why did I choose to reduce the level of guarding? Because Rabbi Yehuda understands that there is also a rationale for saying that a mu’ad ox requires less guarding than a tam ox. Less than a tam ox. And therefore he says: a double inclusion only comes to exclude—so it excludes the level of guarding. What is that rationale? You know what? I’ll already say it now in one sentence, even though we’ll probably only get to it next class. What I basically want to argue is this: look, there is—I’ll formulate it in several ways later, but here just so you see that it’s not completely devoid of logic. After all, half-damages is a reduced payment. In order to be exempt from a reduced payment, you have to guard better. That makes a lot of sense. Why should I care that ordinary oxen are presumed guarded in the case of a tam ox? Right, that’s already reflected in the fact that you pay only half and not full damages. You want to be exempt and not pay even the half? For that you have to be ultra-righteous. To avoid paying full damages, it’s enough that I’m not completely at fault. But to avoid paying even the half, there I have to be ultra-righteous. I have to guard in the most superior way possible. Therefore, precisely because the payment for a tam ox is reduced, there is logic to say that in order to be exempt from a reduced payment you need stronger guarding. Very logical.

[Speaker E] That works only if we say that half-damages is monetary liability. I don’t think it works if we say that half-damages is a penalty. Why would it make sense that to be exempt from a penalty you have to work harder than to be exempt from ordinary monetary damages? Ordinary monetary damages are something you owe. A penalty, supposedly, isn’t really owed—it’s extra. So what’s the logic that you need to work harder to get out of that…

[Rabbi Michael Abraham] My penalty isn’t something I deserve—I have to pay it. The whole essence of a penalty is that you receive money even though you don’t really deserve it; you get it because they want to extract it from me. It’s a monetary punishment. Now, in order to be exempt from punishment, I need to be an excellent guardian. In order not to compensate you, lesser guarding is enough. You can ask about the standing of the tam component. Even in the case of a mu’ad ox, if I use lesser guarding, maybe at least I should still pay the tam half—that you can ask. By the way, the Talmud itself later there on page 45 really raises the question of whether the tam component remains in place.

[Speaker E] If half-damages is a penalty, it comes out that not only did they penalize you, they also required you to make more effort in order to get out of that penalty. I don’t know, that doesn’t sound so logical to me.

[Rabbi Michael Abraham] It’s completely logical, very simple logic. I’m saying: in order to get out of the penalty—think of it this way—to be exempt from the penalty, as far as the actual damages payment goes, they already exempted you. That’s not even a problem. Meaning, even if you guarded not at all, you’re exempt, okay? Completely exempt from the payment. So in that sense the hierarchy is preserved. For a tam ox you don’t need to guard at all; for a mu’ad ox you need lesser guarding. What’s wrong with that hierarchy? Excellent. Now there’s a new category: the penalty. To be exempt from the penalty—that exists only in the tam ox, not in the mu’ad ox—to be exempt from the penalty, you need superior guarding. That’s all. There’s no point comparing tam and mu’ad. You can only ask: in the case of a mu’ad ox, does the tam aspect still remain in place? That’s a good argument. Right. We need to check why, in the case of a mu’ad ox—or maybe yes—if I kept only lesser guarding on a mu’ad ox, perhaps I should at least pay the half-damages penalty. Fine, that’s a good question. The Talmud—it’s actually a dispute in the Talmud. The Talmud itself raises it in this very passage, by the way. It raises it in this very passage, I think, because it understands that this really comes up here: that there is a rationale to be stricter with a tam ox than with a mu’ad ox precisely because of this. In a tam ox there is something that doesn’t exist in a mu’ad ox, and if so the Talmud asks: fine, then bring that into the mu’ad as well—just add another half on top. But there would still be a half that is a penalty inside the payment for a mu’ad ox. That comes exactly out of this reasoning. So this is completely logical. I see no logical problem with it at all. Okay, but that’s what I’m saying.

[Speaker G] And how does that go back—how does that go back to the rule that a double inclusion only comes to exclude? It seems to include—double inclusion—so how does it become that a double inclusion only comes to exclude?

[Rabbi Michael Abraham] What didn’t I understand? That comes after we already had the rule that a double inclusion only comes to exclude.

[Speaker G] But the fact that it’s a penalty we already knew beforehand, ostensibly.

[Rabbi Michael Abraham] Rabbi Yehuda’s initial reasoning was that a mu’ad ox requires more guarding than a tam ox, or at least as much as a tam ox. That’s obvious, as we said with Rabbi Meir and as we said with Rabbi Eliezer. I said—but I asked—fine, the Torah taught me that this reasoning is not correct. There is a scriptural decree that a double inclusion only comes to exclude. Even so, I still need to understand the result of the exposition in logical terms. Not that the logic simply collapsed. How do you say it? There definitely is such a side as well. It’s not a far-fetched side. And if the Torah taught me that it wants to follow that side, then fine. I understand what the Torah said. That doesn’t mean I would have said it even without that.

[Speaker G] Even if it’s a penalty, it’s still not necessary.

[Rabbi Michael Abraham] I said—that’s exactly the point. I’m saying it’s not necessary, but if it is said, it’s logical. There’s no reason not to analyze what the Torah says. I’ll tell you more than that. I said earlier that in expositions generally there always has to be logic. So if there is logic in the exposition, why do I need the exposition? Just say it based on logic. It’s always like that. What I just said is always true. The difference between exposition and reasoning—if every exposition has reasoning in it, then why do I need a verse? It’s just logic. The point is that in exposition the reasoning is never enough by itself. I would not have said it without the exposition, because if I would have said it without the exposition, then the exposition would be unnecessary. Why do I need a verse? It’s just logic. In expositions, the reasoning always comes after there is already an exposition. You have a verbal analogy, you have a general and specific, you have something else—I don’t know. Now you ask yourself: okay, what do I do with this? Here reasoning operates. But if the exegetical trigger were not there, you would not have said it on your own. Because if that were the case, there would be no need for exposition; it would just be plain reasoning and that’s it. And I’m saying the same thing here. The rule that a double inclusion only comes to exclude is a certain type of exposition. Once that exposition has been stated, I ask myself: okay, the sages understood that a double inclusion only comes to exclude—why did they specifically reduce the level of guarding? What’s the logic in that? They understood that the logic is the logic I gave here. Okay? That does not mean I would have said it without the rule that a double inclusion only comes to exclude. On the contrary, we saw explicitly in the Talmud that even Rabbi Yehuda would not have said it without that. That’s why I read the Talmud passage, because there you see exactly all these nuances. Okay? Good. Now we have a difference between “ordinary oxen are presumed guarded” and “ordinary oxen are presumed guarded” on page 15. Once again I’m sharing—look at Rashi. “Ordinary oxen are not presumed guarded,” says Rashi: “A person does not guard his ox at all, but just leaves it and goes out.” That is not what it means on page 15, right? On page 15, “ordinary oxen are presumed guarded” means that one does not need to guard them. Here Rashi says “ordinary oxen are not presumed guarded” means that people do not tend to guard oxen all the time. That’s an assessment of what people do, not of what is required. On the contrary, they don’t do it, and therefore it’s a problem; you need to ensure that they do. Okay? That’s the point. So in a certain sense the meaning is not only different but almost opposite. And the same goes here for Rabbi Meir’s opinion, right? “Ordinary oxen are not presumed guarded.” And Rabbi Yehuda’s view is: “Ordinary oxen are presumed guarded.” What does that mean? “There is no person who does not guard his ox with lesser guarding.” Again, the assumption is about what people do, not about what is required. About what people generally do: at least a reasonable person uses lesser guarding. And notice now—he says a person does this. Remember the introduction I gave at the beginning of the class? I asked: what does a person do even without the Jewish law? That’s what they’re talking about here. That’s what the Talmud says. There is no person who does not guard his ox with lesser guarding, regardless of Jewish law. That’s obvious. Now the verse obligates, in the case of a tam ox, half-damages. Now Jewish law enters. And Jewish law obligates half-damages for a tam. For what? You need superior guarding. So you see that superior guarding is required. Then he inferred from “and he did not guard it” and from the rule that a double inclusion only comes to exclude, and so on—that’s already the continuation of the Talmud. And we see in Rashi that the expressions “oxen are presumed guarded” and “not presumed guarded” are not interpreted here as they were on page 15. In a certain sense it’s almost the opposite. On page 15, “ordinary oxen are presumed guarded” is a reason to exempt. Here, “ordinary oxen are presumed guarded” is a reason to obligate. “Ordinary oxen are presumed guarded” means that people guard their oxen. Okay. Now, the claim still is that according to Rashi this does not really flip the underlying framework. Meaning, both of these opinions can go with the view of Rav Huna the son of Rav Yehoshua on page 15, that half-damages is a penalty. And the Torah basically says: oxen are presumed guarded—presumed guarded meaning they don’t need to be guarded, they don’t gore. Okay? Why does it impose on me the penalty of half-damages? In order to motivate me to guard. But there is a dispute between Rabbi Meir and Rabbi Yehuda about what the reasonable person does with a tam ox. Rabbi Meir says that a person does not guard a tam ox at all, because it is presumed guarded—why should I guard it? So what does the half-damages come to do? To obligate him to use lesser guarding. According to Rabbi Yehuda—again, this works with Rav Huna the son of Rav Yehoshua—ordinary oxen are presumed guarded; you don’t need to guard them, but people do guard them with lesser guarding, and maybe, by the way, that is why they are presumed guarded. Meaning, it’s not simply that they don’t gore by nature; rather, the lesser guarding that people use, together with their nature, ensures that they don’t gore. So why—why do they penalize me with half-damages? In order to motivate me to guard better than that lesser guarding, meaning superior guarding. There—I’ve now explained both Rabbi Meir and Rabbi Yehuda according to Rav Huna the son of Rav Yehoshua, whose view is the accepted Jewish law: that half-damages is a penalty. An interesting question is how Rav Pappa would explain these two opinions. Rav Pappa says that ordinary oxen are not presumed guarded. If ordinary oxen are not presumed guarded, that means that by law they require guarding. Right? It’s just that half-damages is ordinary monetary liability, and they waived half for me. Okay? So if that’s the case, then how do we explain Rabbi Meir, who says that ordinary oxen are not presumed guarded, meaning that a person does not guard his ox at all? Even though the ox is in fact liable to gore, the person is careless, because as long as it hasn’t gored yet, he is lax. That’s how it would have to be explained according to Rav Pappa. And Rabbi Yehuda, who says that ordinary oxen are presumed guarded—he says that there is no person who does not guard his ox with lesser guarding—what that means is what I said: that the tam ox is fundamentally liable to pay, because in principle a tam ox should at least have required lesser guarding, and that is in fact what people do. No, sorry—I’m now talking according to Rav Pappa—it should have required superior guarding, and people generally use lesser guarding. Fine? Therefore, if you used lesser guarding, you are liable to pay. Okay? So according to Rav Pappa it really comes out that there is some kind of after-the-fact reality described here by the Tannaim, in which people are basically doing less than they were really obligated to do. According to Rav Huna the son of Rav Yehoshua, that’s not the case; people are actually doing what is required. Anything beyond that is what the Torah wants to motivate us to do, and that’s why it penalizes us. Okay. Therefore there is no dependence between the dispute here and the dispute there. Tosafot there, on page 45, says: “ordinary oxen are presumed guarded”—the explanation is not like the other place in the first chapter regarding the dispute whether half-damages is a penalty. Right? He learns like Rashi. It does not mean the same thing; rather the meaning is about people—but “presumed guarded” here means that it is people’s way to guard it, and ordinarily they give it lesser guarding. A person ordinarily uses lesser guarding, like Rashi. Okay. After that Tosafot brings Rabbenu Tam. And Rabbenu Tam had the text reading the opposite: according to Rabbi Meir, “presumed guarded,” and according to Rabbi Yehuda, “not presumed guarded”—he reversed the text. Then it comes out that the terms fit page 15, and then it turns into “shall we say this is a tannaitic dispute?” Right? Because then Rabbi Meir would hold that oxen are presumed guarded, like Rav Huna the son of Rav Yehoshua, whose view is accepted as Jewish law, and Rabbi Yehuda would hold that oxen are not presumed guarded, like Rav Pappa, whose view is not accepted as Jewish law. And then from the standpoint of practical halakhic ruling it comes out a bit odd, because in our context we rule like Rabbi Yehuda. Fine? So he says, according to that text, the explanation is: what is Rabbi Meir’s reason? He holds that ordinary oxen are considered presumed guarded by their owners, because the owners think that their nature is not to cause damage, and therefore they are not concerned to guard them. According to Rabbi Meir, they are not concerned to guard them, even though they are mistaken. And Rabbi Yehuda’s reason is that ordinary oxen are considered by their owners not presumed guarded, and so they guard them with lesser guarding. And according to this version, the meaning of “presumed guarded” here is like the meaning of “presumed guarded” in the first chapter. Nevertheless, both Rabbi Meir and Rabbi Yehuda hold that half-damages is a penalty. What bothered Rabbenu Tam was: what, are we really going to say here that the tannaitic dispute here is the same as the amoraic dispute on page 15? So he says no. “Ordinary oxen are presumed guarded” means what people think. In that sense it’s the same as page 15. But both can still go with Rav Huna the son of Rav Yehoshua. Rav Huna the son of Rav Yehoshua says that oxen are in fact presumed guarded, and fundamentally do not need guarding. The penalty comes to motivate me to guard more. The question over which Rabbi Meir and Rabbi Yehuda disagree is what the owners think. Fine? According to Rabbi Meir, the owners think that there is no need to guard at all. And according to Rabbi Yehuda, the owners think that lesser guarding is enough. Okay? That’s all. But both hold that half-damages is really a penalty. By the way, according to this it would come out that according to Rabbi Yehuda, if you did not guard at all—not that you used lesser guarding, but that you did not guard at all—even for a tam ox you would have to pay full damages. Because after all, even a tam ox requires lesser guarding. Everything we say—that ordinary oxen are presumed guarded—is under the assumption that people use lesser guarding. But if people do not even use lesser guarding, then the oxen are not presumed guarded, and then it should come out that you pay full damages, or at least that your half-damages would be monetary liability and not a penalty. I’m saying that parenthetically; I won’t get into it here, but that is ostensibly what comes out according to Rabbenu Tam. In any case, for our purposes, both Rabbenu Tam and Rashi, although they explain differently the meaning of the term “ordinary oxen are presumed guarded,” practically we all rule like Rav Huna the son of Rav Yehoshua: that oxen are presumed guarded in the sense that they do not require superior or lesser guarding, and the half-damages is a penalty. And the dispute between Rabbi Meir and Rabbi Yehuda is simply about what people think, and consequently what the Torah wanted to motivate them to do. Okay? Now the next stage—I actually want to return to our passage at the beginning of the chapter HaKones. Before that, I want to discuss Rabbi Yehuda’s reasoning. This point—that Rabbi Yehuda requires stronger guarding for a tam ox than for a mu’ad ox—I already gave you one formulation earlier; we’ll also see this a bit in Meiri and in the medieval authorities (Rishonim), and after that I’ll get to our passage, because in our passage too they once again enter this dispute among the Tannaim, and they want to know how to interpret the Mishnah at the beginning of the chapter HaKones. Just one final question before we end: who among you managed to look at it.