Receivership Chapter – Lesson 4
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- Levels of guarding in the dispute among the Tannaim
- Two ways of understanding liability for damages and inciting one’s own dog
- “Insurance-like” responsibility and the meaning of exemption when one guarded properly
- The conceptual difficulty in Rabbi Yehuda and Rabbi Eliezer ben Yaakov and the rationale from the verses
- Meiri on “it has a public reputation” and three formulations of the tam–mu’ad relationship
- Tosafot on the priority of being careful not to cause harm
- Rabbi Eliezer: “It has no guarding except a knife” between absolute liability and a prohibition-based law
- The Talmudic passage: a pit, “and he did not guard it,” and Rabbi Natan’s “do not place blood in your house”
- The Mishnah’s “properly” and tooth and foot: setting up the passage and reducing the level of guarding
- Questions about the public domain, Kehillot Yaakov, and “it began with negligence and ended in an accident”
Summary
General Overview
The lecture continues the inquiry into the level of guarding required in order to be exempt from paying monetary damages caused by one’s property, against the background of a Tannaitic dispute among Rabbi Meir, Rabbi Yehuda, Rabbi Eliezer, and Rabbi Eliezer ben Yaakov. Two fundamental understandings of liability for damages are presented: liability rooted in negligent guarding, versus responsibility for what one’s property does, including an “insurance-like” formulation. The lecture examines the near absence of practical differences between these approaches, with one notable exception in the law of inciting one’s own dog, following Pnei Yehoshua and Chazon Ish. It then discusses Rabbi Yehuda’s view, which seems counterintuitive, brings Meiri as offering the rationale of “public reputation” regarding a mu’ad, and proposes several formulations for resolving the relationship between a tam and a mu’ad and the different levels of guarding. Finally, the lecture opens up Rabbi Eliezer’s view—“it has no guarding except a knife”—through the Talmudic discussion and the medieval authorities’ dispute over whether this is a monetary law or an additional prohibition-based layer, and concludes with the Mishnah’s term “properly,” explaining it as referring to tooth and foot, with the Torah having reduced the required guarding in those cases.
Levels of guarding in the dispute among the Tannaim
The lecture states that on pages 45–46 there is a three-way Tannaitic dispute: Rabbi Meir requires superior guarding both for a tam and a mu’ad; Rabbi Yehuda requires superior guarding for a tam and inferior guarding for a mu’ad; and Rabbi Eliezer says that a mu’ad has no guarding except a knife, while a tam apparently requires superior guarding. The lecture adds that Rabbi Eliezer ben Yaakov holds that inferior guarding suffices for both, and that this view appears in the Talmud, not in the Mishnah.
Two ways of understanding liability for damages and inciting one’s own dog
The lecture presents two possible ways to understand liability for damages: one can view negligence in guarding as the cause of action, or one can view the liability as responsibility for what one’s property does, where proper guarding is an exempting claim. The lecture reduces the practical differences almost to zero, and notes one main practical difference discussed between Pnei Yehoshua and Chazon Ish regarding the burden of proof, while arguing that even this probably is not much of a practical difference, at least in one direction. The lecture brings the law of someone who incites his own dog, where Pnei Yehoshua and Chazon Ish say he is exempt just as one is exempt when inciting another person’s dog, and explains this by saying that the liability is attributed to the dog itself and only passed on to the owner when the liability applies to the dog; in a case of incitement, the dog itself is not liable because “someone incited it,” so there is nothing to transfer to the owner.
“Insurance-like” responsibility and the meaning of exemption when one guarded properly
The lecture suggests another formulation for understanding responsibility for one’s damaging property as a kind of “insurance company” obligation, in which the owner must compensate when his property caused damage regardless of personal fault. The lecture asks that according to this conception it is unclear why proper guarding exempts, and suggests that damage that occurs despite good guarding is considered an act of God or the result of an external factor and therefore is not “covered” by the insurance-like responsibility. The lecture adds a broader conceptual discussion of why the owner should bear responsibility without fault at all, suggesting that the injured party is not at fault either, so failing to compensate him “de facto shifts” the damage onto him. It brings Tzafnat Pa’aneach on the Sabbath rest of one’s animal as an illustration that one’s property is a “periphery” of the person, so when it acts there is a relationship to the person himself. The lecture notes that according to the insurance formulation it is difficult to explain the exemption in the case of inciting one’s own dog, so there one needs the earlier explanation of “rolling over” the dog’s liability to the owner.
The conceptual difficulty in Rabbi Yehuda and Rabbi Eliezer ben Yaakov and the rationale from the verses
The lecture returns to the comment about Rabbi Yehuda’s reasoning, according to which a tam requires superior guarding and a mu’ad inferior guarding, and argues that this is opposite to logic, because a tam has a presumption of being guarded and half-damages are a penalty, whereas a mu’ad is “forewarned to cause damage.” The lecture explains that in Rabbi Yehuda this is a conclusion forced by textual derivations, but even a law learned from verses still requires explanation, and in a derivation it is even plausible that an underlying rationale is built in. The lecture emphasizes that in Rabbi Eliezer ben Yaakov the question is even sharper, because the initial assumption would have been that a tam needs superior guarding and a mu’ad inferior guarding, and the verbal analogy teaches that inferior guarding suffices even for a tam. It asks why the initial assumption sees a tam as requiring stronger guarding than a mu’ad.
Meiri on “it has a public reputation” and three formulations of the tam–mu’ad relationship
The lecture cites Meiri: “Rabbi Yehuda says a tam is liable and a mu’ad is exempt… ‘and its owner did not guard it’… this teaches that any degree of guarding suffices… and it seems to me that the reason is that it has a public reputation, so people too ought to beware of it.” The lecture proposes one reading in which the beginning of Meiri is the source from the verse and the reason is that “it has a public reputation,” and notes that this reason is problematic because on the one hand the owner of a mu’ad is “more at fault,” while on the other hand in payment a mu’ad pays full damages and a tam half-damages as a penalty, so no “contributory fault” of the injured party is reflected there. The lecture proposes a second reading that connects the two parts of Meiri so that for a tam the liability is responsibility, while for a mu’ad the liability is for deficient guarding, and inferior guarding suffices for a mu’ad because others know to beware of it as well. The lecture proposes a third formulation: for a tam the liability is smaller—half-damages as a penalty—so in order to be exempt even from that, one needs especially careful guarding, whereas for a mu’ad, which involves full damages, inferior guarding suffices so that one not be considered a “serious” negligent party.
Tosafot on the priority of being careful not to cause harm
The lecture brings Tosafot on page 23a: “A person has more reason to be careful not to harm others than not to be harmed.” The lecture notes that this fits the idea that for a tam, superior guarding is required in order to be exempt, whereas for a mu’ad inferior guarding is enough. It raises the possibility that “not to be harmed” should be understood as the injured party or property owner avoiding exposure to damage, which brings us back to the reasoning of “contributory fault” in the case of a mu’ad.
Rabbi Eliezer: “It has no guarding except a knife” between absolute liability and a prohibition-based law
The lecture opens Rabbi Eliezer’s view as fitting a pure “safety-oriented” conception in which the level of guarding has no significance, and as long as it has not been “put to the knife,” the owner is taking a risk. The lecture notes that according to this understanding the payment obligation does not derive from a prohibition, since even a complete accident after perfect guarding would still obligate according to Rabbi Eliezer, and from there it questions the She’iltot’s connection between monetary liability and prohibition. The lecture presents Meiri, who explains that Rabbi Eliezer does not obligate payment where one used superior guarding, but rather that “he has not fulfilled his duty before Heaven until he removes it from the world,” and states: “Regarding payments, the Jewish law follows Rabbi Yehuda, and regarding fulfilling one’s duty before Heaven, the Jewish law follows Rabbi Eliezer.” The lecture is puzzled by this direction because it depicts a situation in which payment is exempt but “fulfilling one’s duty before Heaven” remains, and it proposes understanding “liable by the law of Heaven” as a matter of restitution rather than punishment, citing Meiri on page 56a: “Whenever we wrote here that one is liable by the law of Heaven, the meaning is that he is obligated in restitution…”
The Talmudic passage: a pit, “and he did not guard it,” and Rabbi Natan’s “do not place blood in your house”
The lecture quotes the Talmud on page 46: Rabbah learns from “and he did not guard it” that “it no longer has any guarding,” Abaye objects from “and he did not cover it” regarding a pit, and Abaye answers that Rabbi Eliezer’s source is Rabbi Natan’s baraita: “From where do we know that a person should not raise a dangerous dog in his house… as it says, ‘Do not place blood in your house.’” The lecture argues that at first glance this suggests that the discussion in Rabbi Eliezer is about prohibition, not monetary law, while the dispute in the Mishnah concerns payments. It then presents Tosafot on page 46, who conclude: “It is not speaking with regard to payments, but only regarding a general prohibition, that it is forbidden to keep it,” while trying to explain why a pit is not prohibited like a dangerous dog. The lecture notes that Rashi seems to imply that this also concerns payment liability, and that this dispute fits into the larger question of the relationship between prohibition and monetary liability.
The Mishnah’s “properly” and tooth and foot: setting up the passage and reducing the level of guarding
The lecture brings the baraita: “A door that can withstand a normal wind—this is considered proper,” and identifies “properly” with inferior guarding. The lecture quotes Rav Mani bar Patish: “Who is the Tanna who holds that for a mu’ad inferior guarding is enough? It is Rabbi Yehuda,” based on the Mishnah “he tied it… and locked… properly,” and explains that according to Meiri and Tosafot one must say that even in monetary law Rabbi Eliezer does not accept inferior guarding for a mu’ad. The lecture brings Tosafot, who suggest that the Mishnah is discussing sheep, so this is a case of tooth and foot, which are forewarned from the outset, and explains that later the Talmud establishes that even Rabbi Meir agrees that for tooth and foot inferior guarding suffices, because “the Torah reduced the required guarding in four cases, namely: pit, fire, tooth, and foot.”
Questions about the public domain, Kehillot Yaakov, and “it began with negligence and ended in an accident”
The lecture mentions Kehillot Yaakov’s proof from tooth and foot in the public domain, which is exempt “because you are allowed to walk with it in the public domain,” and asks why, then, horn is liable. It rejects this as inconclusive, because for a tam ox, half-damages are a penalty, and for a mu’ad ox it may be forbidden to lead it around, and even according to Tosafot there may be a need to slaughter the mu’ad ox. The lecture mentions the question of later authorities as to why one should not obligate tooth and foot in the public domain under the principle of “it began with negligence and ended in an accident due to that negligence,” based on horn, and answers that according to the formulation of liability as responsibility there is no “it began with negligence,” because one is permitted to walk in the public domain and liability for horn is not necessarily negligence. The lecture concludes by saying that the next lecture will move on to “four things that one who does them is exempt in human courts but liable by the law of Heaven,” and with a reminder about the study sessions on the Beit Midrash website on Zoom.
Full Transcript
[Rabbi Michael Abraham] Okay, let’s begin. In the previous lecture we started dealing with the level of guarding required of a person who wants to guard in order to be exempt from damages caused by his property. We saw a three-way Tannaitic dispute on pages 45–46. Rabbi Meir holds that both for a tam and for a mu’ad, superior guarding is required. Rabbi Yehuda says that for a tam you need superior guarding, and for a mu’ad inferior guarding is enough. And Rabbi Eliezer says it has no guarding except a knife, and I explained that this is only for a mu’ad; for a tam, apparently, superior guarding. And Rabbi Eliezer ben Yaakov says that in both cases inferior guarding is enough; that’s a view that appears there in the Talmud and not in the Mishnah. Before I continue and we get a bit into explaining the different views—just one second, hold on. So I want to remind you of the two possibilities we saw regarding liability for damages in general. I said that many later authorities discuss this, that there are two possible ways to understand liability for damages. One possibility is to see negligence in guarding as the cause of action: a person who was negligent in this guarding is the reason to sue him for payment for what happened as a result, and the requirement that the damager be his property is because something that is not his property he does not have to guard. And the second view says that this is responsibility for what his property does, while negligence in guarding is an exempting claim. Meaning, if I guarded properly, then I can be exempt from payment. We talked a bit about the practical differences; I said that in my opinion there are very few, if any. The main practical difference was the burden of proof, between Pnei Yehoshua and Chazon Ish, and I tried to show that even that is probably not much of a practical difference, at least in one direction. And I’ll remind you of one more thing we saw there: a person who incited—one of my proofs that this is not a dichotomous dispute was that I brought the fact that both Pnei Yehoshua and Chazon Ish discuss a person who incited his own dog, where the claim is that in such a case he is exempt just as in the case of inciting someone else’s dog. And I said that the only way to explain this is if I understand that I transfer the liability of the dog itself onto the owner. Because yes, the problem was that if I’m liable just because I was negligent in guarding, then here, when I incited it, here I wasn’t negligent in guarding; I was the positive cause of the damage. So how could it be that in such a case I would be exempt? My claim was that if I was negligent in guarding, then the dog has an obligation, the dog has liability to pay. And since the dog is not a legal person, it cannot stand trial, so they transfer that liability to the owner of the dog. But if I incited the dog, then obviously my fault is full fault, so if there were liability on the dog they would certainly transfer it to me. But the dog itself has no liability, because the dog itself did not damage on its own; someone incited it. And therefore the dog itself is exempt, so there is nothing to transfer to me. Why am I reminding you of this? Because in another moment I’m going to comment on it, but I want to add another possibility, maybe even a simpler one, on this side that sees it as responsibility for one’s damaging property. I explained that basically this means there is liability on my property that caused damage, and that liability is transferred to me. But the simpler explanation is an explanation that hangs on some kind of responsibility—you can call it insurance-like. Meaning: I, as the owner of the dog or the owner of the ox, whatever caused the damage, I am responsible like an insurance company to compensate the person who was harmed. The insurance company doesn’t pay because it is guilty. With an insurance company we don’t discuss whether it guarded properly, whether it was negligent or not negligent; none of that is relevant. It is responsible because it undertook to provide insurance for this kind of event or that kind of event. In the case of damaging property, according to this conception, the Torah basically establishes that the owner bears an insurance-like responsibility, and once my property caused damage, I must pay. That is another way to understand the person’s liability just from the fact that his property caused damage, not because of negligence in guarding. According to this conception, the question that arises is, in a certain sense, the opposite one. Why, in fact, if I guarded properly am I exempt? I’m simply responsible for the damages caused by my property; it’s not a question of guilt. So what difference does it make whether I guarded properly? Why is that relevant? In the previous explanation, where I said that the damages caused by my property are transferred to me—if I guarded properly, then it basically acted against what I tried to do. I tried to stop it, and it still got out. In that case, its liabilities are not transferred to me. But according to the insurance conception, the question is: why am I exempt from paying if I guarded properly? An insurance company does not need to guard, and even if it does guard that changes nothing. It won’t exempt it from paying. As long as the policy obligates it to pay for a certain case, it will have to pay. Why is negligence in guarding relevant to the discussion at all? So the claim is that apparently we view damage of this kind as some sort of act of God. Again, let’s continue in insurance-company terms. An insurance company that undertook to insure a car, okay, and the car burned up. If the car burned up—I’m not an expert in the details—but at least in many cases the car is not insured. That’s force majeure. I don’t know, lightning came from heaven and burned the car. That’s force majeure; it’s not included in the insurance. In that sense, maybe that is the idea here too. When I guarded the ox properly, then the fact that it caused damage is some sort of force majeure. There is no insurance for force majeure. Meaning, I’m not subject to this responsibility for something that is force majeure. Or maybe in a different formulation one could say that once I guarded properly and the ox or dog caused damage, that means that in fact something else was involved here—otherwise how did it happen? I guarded properly. So how did the damage happen? Something was involved here. Meaning, there was some outside factor here that actually caused this outcome. And therefore the insurance-like responsibility does not fall on me, just like force majeure, what I said before. That’s probably how one should understand the exemption of a person who guarded properly according to this conception.
[Speaker B] Can I suggest another explanation? Yes, yes. Even according to the insurance conception, of course, one can ask: what’s the reason that this miserable owner is supposed to be everyone’s insurance company for his property? And I think the answer is simple: even if the conception is insurance-like, the reason for the obligation is still the claim against the owner to guard, and therefore in a place where he did not guard, the claim is transferred to him in the insurance format. That really reduces the practical differences to a minimum.
[Rabbi Michael Abraham] Yes, but then what exactly is the difference between that and negligence in guarding? There is no difference.
[Speaker B] In my opinion there is no difference, but that’s just me. The whole conceptual investigation seems doubtful to me for exactly that reason. Yes.
[Rabbi Michael Abraham] We’re back to that again. I’m saying once again: if I’m presenting two possibilities here, then there’s no point in bringing this possibility for no reason.
[Speaker B] No, but I’m saying this is a substantive claim, I’m not saying it just as an objection. I really don’t understand why to obligate someone as an insurance company if he’s not actually at fault.
[Rabbi Michael Abraham] To me that’s completely simple. Once the property—why is a person always liable? He’s not at fault; what do you want from him?
[Speaker B] No, so that really is a dispute among the medieval authorities. There are those who say that you always need some element of fault.
[Rabbi Michael Abraham] Fine, but according to those who say it applies even in a complete accident—
[Speaker B] Then I understand it as something formal. Since it’s impossible always to determine your fault, they impose it in the form of insurance.
[Rabbi Michael Abraham] Of course you can determine it, like in anything else. Like every exemption of accident—will you say it’s impossible to determine? What do you mean? Of course you can determine whether it was an accident or not.
[Speaker B] No, because the standard of accident here, the accident of a person who caused damage, is much broader than the accident of an unpaid bailee. There are degrees in the matter, because even if a person went to sleep next to vessels, they say that’s not considered an accident because he could have known it. For an unpaid bailee I don’t think it’s the same degree. In short, my claim is that it’s possible—
[Rabbi Michael Abraham] That it’s not the same—first of all, who said it’s not the same degree? And second, I also disagree: even if it’s not the same degree, I don’t see why you would suddenly say that it can’t be checked. It can be checked!
[Speaker B] No, because if every smallest amount of fault makes you liable for damage caused by your own body, my simple claim is that the logic says the default is that you’re liable.
[Rabbi Michael Abraham] That’s the default, but what if I bring proof?
[Speaker B] How can you prove such a thing? What’s the problem with proving it?
[Rabbi Michael Abraham] There were witnesses; they saw that it was a complete accident.
[Speaker B] So indeed there are medieval authorities who say that—I—
[Rabbi Michael Abraham] I’m not talking about those medieval authorities; you’re taking me back to them again. I’m talking according to the medieval authorities who say that even in a complete accident it’s like this. Okay, maybe that’s not so reasonable. The point is, I think there’s no need to squeeze into all that. It’s a really simple rationale; I don’t see the problem. A person is responsible for what he does, and likewise for what his property does; because it is his, he has to bear the consequences. I’ll ask the opposite question. I asked this in one of the previous lectures too: is the injured party at fault? Why are you shifting it onto him?
[Speaker B] I’m not shifting it onto him.
[Rabbi Michael Abraham] You are shifting it onto him. It’s a fact that the damage occurred. I didn’t shift the damage. No, obviously, it happened—but once you don’t compensate him, in the end you have de facto shifted it onto him.
[Speaker B] Yes, but you need a reason for judicial intervention. Here I’m saying I’m not doing anything.
[Rabbi Michael Abraham] But the question is what counts as intervention.
[Speaker B] Intervention is obligating someone to pay.
[Rabbi Michael Abraham] No, no, no—that’s exactly the point, as I explained in the Chazon Ish too. That’s not correct. Intervention is to exempt, because at the end of the day, once my property caused damage, first of all I am responsible to bear the consequences and restore the injured party.
[Speaker B] So that’s my question: where does that responsibility come from? Without the discussion of fault, it’s not enough.
[Rabbi Michael Abraham] Without fault, without fault—the very fact that it is my property means responsibility lies on me for whatever this thing does. What do you mean? Why not?
[Speaker B] No, that needs an explanation. I don’t accept it just as Torah from Heaven. Why?
[Rabbi Michael Abraham] To me it’s a simple rationale, I don’t know.
[Speaker B] The fact that it’s my property obligates me completely for all the damage it causes?
[Rabbi Michael Abraham] Completely. I mentioned that Tzafnat Pa’aneach even says this regarding the Sabbath rest of one’s animal. He says it’s the same rationale: once my animal desecrates the Sabbath, I have violated a prohibition. Why? Because it is his animal.
[Speaker B] But that’s written in the Torah.
[Rabbi Michael Abraham] What does that have to do with it? But why does the Torah write that?
[Speaker B] Same thing—because you’re the only one who can make sure it doesn’t work on the Sabbath. No—why?
[Rabbi Michael Abraham] Why do I have to make sure of that at all? Why should I care if it desecrates the Sabbath?
[Speaker B] Because there’s no one else who will take care of it.
[Rabbi Michael Abraham] No, no need to take care of it—
[Speaker B] But the Torah wants it not to work on the Sabbath. Why does it want that? Well, why does it want me not to work on the Sabbath? Apparently it thinks the Sabbath doesn’t look right when animals work.
[Rabbi Michael Abraham] No—animals belonging to a Jew.
[Speaker B] Right, but why am I the poor guy who has to make sure of this? Because I’m the one most able to do it.
[Rabbi Michael Abraham] No, you’re going in the opposite direction. That’s exactly the point: why does the Torah want the animal not to work on the Sabbath? Because when the animal works on the Sabbath, it’s as if I worked. It’s my periphery.
[Speaker B] No, or else it’s just not nice on the Sabbath when animals are working.
[Rabbi Michael Abraham] What does “not nice” mean? Those are strange formulations. Obviously this is part of the person’s own resting. When his periphery does not rest, then in some sense his own rest is lacking. Property is some kind of periphery of me; when it does something, it’s as if I did something. That’s the same claim regarding one’s damaging property—the same idea. I think it’s a simple rationale, I don’t know. Fine, everyone will choose for himself. Okay. In any event, I’ll just add one more comment: according to this insurance conception, it seems to me impossible to explain the Pnei Yehoshua and Chazon Ish that I brought there on page 23, about inciting one’s own dog. Because if I incited my own dog, then according to the insurance conception I would certainly be liable. The only way to explain someone who says that this is exempt is, I think at least, only in the way I explained last time: that in fact the dog itself has no liability, and the dog’s liabilities are transferred to the owner. But according to the conception here, that I’m simply an insurance company, then in a case of force majeure the insurance company is exempt—but here, when the force majeure, so to speak, is the insurance company’s own manager, who comes and opens the door of my car and then the car gets stolen, and then the company tells me, no no, that’s force majeure, the thief found the car open, I’m not responsible—if the insurance company manager did it, don’t tell me stories. And again, it’s not a question of fault; you have an insurance obligation, it’s a liability for damages. They don’t exempt you from that liability because this thing is not considered force majeure—you yourself did it, so you have no exempting claim. Not that the fact you did it is what creates the obligation—that’s not what creates it. So I think the same applies here, and therefore in this law of inciting one’s own dog, it seems to me that according to the insurance conception it can’t be explained. Meaning, regarding Pnei Yehoshua and Chazon Ish there, I still maintain that the explanation I gave there is the only possible explanation. Okay, that was just a reminder with a slight addition regarding the insurance formulation, and now I want to return to the point I made in the previous lecture as well regarding Rabbi Yehuda’s reasoning. Rabbi Yehuda says that for a tam ox, superior guarding is needed, and for a mu’ad ox, inferior guarding is enough. And I asked: that’s the opposite of logic. It’s the opposite of logic because a tam ox has a presumption of being guarded, according to the Jewish law that half-damages are a penalty. So a tam ox has a presumption of being guarded, and precisely there you need superior guarding, whereas with a mu’ad ox, whose very name means it is forewarned to cause damage, precisely there inferior guarding is enough. Seemingly that’s the opposite of logic. I noted there that in Rabbi Yehuda himself this is a constraint that comes out of the verses. Meaning, really Rabbi Yehuda’s initial conception was not like this. His initial conception was that basically a mu’ad ox cannot be more lenient than a tam ox. But because there is a verbal analogy and repeated inclusions and so on, this comes to exclude, and in the end it comes out as inferior guarding. Therefore the question in Rabbi Yehuda arises only after you finish all the Torah’s exclusions and inclusions; in the final analysis, this is the law that comes out, and that law itself somehow requires explanation. I said that the fact that it comes from verses does not exempt us from explanation. Behind a law written in verses too there has to be some understanding, some explanation. Maybe we can’t always understand it, but it’s certainly worth looking. More than that, I said that if it comes from a derivation, then in a derivation it’s even plausible that you can understand it, because the interpreter himself used that reasoning to arrive at his conclusion. A derivation never gets you to the goal unless some sort of reasoning is involved. Therefore the whole question of whether we expound the rationale of the verse is not relevant to derivations, only to the plain meaning of the verses. In any event, that’s Rabbi Yehuda. But in Rabbi Eliezer it’s much stronger—rather, in Rabbi Eliezer ben Yaakov, sorry—because Rabbi Eliezer ben Yaakov says that regarding a mu’ad, fundamentally one should have thought that for a tam there is superior guarding and for a mu’ad inferior guarding is enough. But they learn a verbal analogy from mu’ad to tam. Wait. Yes, sorry. They learn through a verbal analogy from mu’ad to tam, that just as for a mu’ad inferior guarding is enough, so too for a tam inferior guarding is enough. Meaning, were it not for the verbal analogy, I would think that for a mu’ad inferior guarding is enough and for a tam superior guarding is needed. And once again the same question arises which with Rabbi Yehuda arose at the conclusion, while with Rabbi Eliezer ben Yaakov it arises before the verbal analogy, in the initial assumption. Yes? Why do we need the verbal analogy? Because without it we would think that for a tam you need superior guarding and for a mu’ad inferior guarding is enough; so they make a verbal analogy that even for a tam inferior guarding is enough. And the question is: why? Why would we really have thought without the verbal analogy that a tam needs stronger guarding than a mu’ad? Now here there is—in Meiri, I’ll maybe share the file—look at this passage: “Rabbi Yehuda says that a tam is liable and a mu’ad is exempt, because since the verse made its matter depend on a deficiency of guarding, as it says, ‘and its owner did not guard it,’ this teaches that any degree of guarding suffices. And it seems to me that the reason is that it has a public reputation, therefore people too ought to beware of it.” Yes, so he explains Rabbi Yehuda’s view, and he says: regarding a mu’ad it is written, “and its owner did not guard it.” We saw that this verse is written regarding a mu’ad. So from the verse we see that any degree of guarding is enough. “And its owner did not guard it”—as if, if he did not guard it at all; that implies that even inferior guarding is enough regarding a mu’ad ox. But that is written about a mu’ad ox. With a tam ox it remains as before, that superior guarding is required. But of course that is only an inference from the verse. One could say: okay, after you inferred this from the verse, why not say that for a tam ox too you lower it to the level of a mu’ad, because a tam ox cannot be more stringent than a mu’ad ox? So he says, “and it seems to me that the reason is that it has a public reputation”—the “it” apparently refers to the mu’ad—that is, a mu’ad ox that has already gored has a public reputation; people know that this is a mu’ad ox, and therefore people too ought to beware of it. Yes, so basically people know that they need to be careful around this ox, and therefore precisely for a mu’ad ox inferior guarding is enough. A tam ox, where people do not know to beware, requires superior guarding. Now here there are two things—seemingly two reasons or two explanations that he offers. It isn’t presented as two reasons, but rather as a source and a reason. But notice: “since the verse made its matter depend on a deficiency of guarding, as it says, ‘and its owner did not guard it,’ this teaches that any degree of guarding suffices.” It could have been said that the difference between a tam ox and a mu’ad ox is that with a mu’ad ox the liability is because of negligence in guarding, because you didn’t guard. Yes? And therefore this is what he says, that regarding a mu’ad, “since the verse made its matter depend on a deficiency of guarding.” So the basis of liability is deficient guarding. Once I used inferior guarding, you can’t say I didn’t guard. So the idea behind this is that in a mu’ad ox… the liability is based on negligence in guarding, which brings us back to the two possibilities I reminded you of earlier. With a tam ox it’s not like that, because ordinarily oxen have a presumption of being guarded. I don’t need to guard, and the fact that I didn’t guard is not a reason to obligate me. Right? So what is it? There is some liability here, some insurance-like responsibility if you want to call it that, although it’s a penalty, and I’ll comment on that in a moment—but some form of responsibility. That’s the payment with a tam ox, and it’s not liability because of negligence in guarding, but rather liability of responsibility, insurance-like responsibility, or something like that. And because of that, in order to say that you have fulfilled your duty of responsibility, you need superior guarding. But if negligence in guarding is what creates the obligation, then inferior guarding is enough so that I no longer become liable. But with a tam ox, responsibility is what creates the obligation. Only if I guarded properly will I be exempt. In order to be exempt—once guarding is the exempting claim, then you need good guarding. Some minimal guarding is not enough, because basically you’re liable. You need to meet a higher standard in order to be exempt. That at least seems to be how one can understand the opening of Meiri’s wording. But then the continuation is not really understood—what does “and it seems to me that the reason is that it has a public reputation” mean? You wouldn’t need to get to that. Rather, because with a mu’ad ox the liability is negligence in guarding, and with a tam ox it is responsibility, therefore here inferior guarding is enough and there superior guarding is required. So why do you need this reason that “it has a public reputation” and that people ought to beware of it? So it seems to me you can say this in several ways. First of all, one could understand that in the first part he is speaking only about the wording of the verse. He says, since regarding a mu’ad, “the verse made its matter depend on a deficiency of guarding, as it says, ‘and its owner did not guard it,’ this teaches that any degree of guarding suffices.” That is not a reason; it is a source. He has not explained why. He is only saying that since the verse says “and its owner did not guard it,” that means the verse makes the liability depend on the owner’s not guarding. What does “did not guard” mean? Apparently it means did not guard at all. Meaning, then even inferior guarding is enough to exempt. That’s the source. The explanation is because it has a public reputation, and therefore people can beware of it. Okay? So it’s source and explanation, not two explanations. And then “since the verse made its matter depend on a deficiency of guarding” does not mean to say that the cause of action is negligence in guarding, in the whole conceptual investigation of the later authorities. Rather, no—it is simply an interpretation of the words of the verse, “and its owner did not guard it.” He infers it from the wording of the verse. Now there is another point to notice here, namely that this reasoning is problematic. The idea that people ought to beware of it, and therefore with a mu’ad ox inferior guarding is enough—I’ll make two comments. First, if so, then the owner too is more at fault in the case of a mu’ad. The owner also has to know that guarding is required here, and the injured parties too have to know that they have to beware here. Why does he take specifically the side of the injured parties as a reason to be lenient, and not the side of the owner, which would actually be a reason to be stricter? Because it is a mu’ad ox; you should understand that such an ox needs to be guarded. Second—and maybe this is just a continuation of the first point—then why don’t we see this in the payment obligation? If in the case of a mu’ad ox people ought to beware of it, then let the mu’ad ox pay half-damages. You are not really so at fault, because the injured party should have understood that he had to beware. In the payments we don’t see that. Only in guarding do we see it. In the payments, the opposite: a mu’ad ox pays full damages. A tam ox, in principle according to strict law, pays nothing, only half as a penalty. Why? If really in the case of a mu’ad the injured party bears contributory fault, then I would have expected that specifically in the mu’ad case they would pay less. So this reasoning seems difficult to me. So on the one hand, the plain reading of Meiri sounds like the first possibility I suggested: that the first part of his words is not an explanation but a source. He infers it from the verse regarding a mu’ad ox, and afterward he offers some kind of explanation—an explanation that is problematic. But maybe because of these difficulties, maybe he means this: with a tam, people don’t know that they need to beware of it, right? But the owner doesn’t know that either, right? He also doesn’t know that this ox is a gorer, because it hasn’t gored yet. Meaning, there is a basis for leniency from the owner’s side and a basis for stringency from the injured parties’ side. Okay? So what do we do now? This goes back a bit to what I said to Binyamin earlier. So what do we do now? After all, the injured party is not at fault either. So on whom should the burden be placed? The Talmud says—at least, in principle you don’t have to pay half-damages as a penalty, but half-damages as a penalty are imposed on you in order to encourage you to guard anyway. Or basically the consequences are split between the damager and the injured party. So it is very plausible that if the conception is like this, then the reason creating liability here is not negligence in guarding. Here it is clear that what creates the liability is responsibility. Insurance, if you like. So I am basically telling you: know that if your ox causes damage, you will pay half-damages. Not because you are guilty and not because you were negligent in guarding, but rather I impose on you some kind of responsibility, ki heikhi delin’trei le’torei—so that you will guard your ox. Never mind, but I’m imposing some kind of responsibility on you. So that means the payments of a tam ox are payments of responsibility. By contrast, with a mu’ad ox, what does the Torah say? “And its owner did not guard it.” After all, you yourself have to know that the mu’ad ox is a goring ox. Therefore you should have guarded it. So with a mu’ad ox the obligation to pay is an obligation resulting from negligence in guarding. This is not a responsibility obligation. Here you knew that you had to guard, and the claim against you is: why didn’t you guard? Now it is true, Meiri says, that the other side also should have known that they needed to beware, because it is a mu’ad ox. Therefore they require only inferior guarding from you. But still, the obligation imposed on you is an obligation for why you didn’t guard. It’s just that the threshold of what counts as guarding—meaning, what will exempt you from this liability—is inferior guarding, because of the point that the other side also should have been careful. But if that didn’t happen, then pay full damages, because you should have known that this ox is a mu’ad ox and therefore you need to guard it. If you did not even use inferior guarding, then you have to pay the full damage. And if I understand it like that, then I am basically joining the two explanations together. I am basically reading the beginning of Meiri not as merely an explanation of the verse, but truly as an explanation, and the “reason” is just a continuation. He is saying that the first part means that the matter of a mu’ad depends on deficient guarding, because it says “and he did not guard it.” And with a tam ox, the tort basis is responsibility, not negligence in guarding. And why is inferior guarding enough for a mu’ad ox? Fine, it could be that negligence in guarding is the tort basis, but they might still require superior guarding from you. Why specifically inferior guarding? He says no: inferior guarding is enough because other people also know that they must beware of this ox. So it’s only a continuation of what he said in the first part. In a third formulation, which may not necessarily contradict the previous one, I would say this is what I said briefly last time: with a tam ox, basically I am exempt according to strict law. They obligate me in half-damages ki heikhi delin’trei le’torei, as a kind of penalty of half-damages in order to incentivize me to guard the ox. With a mu’ad ox, the obligation is according to strict law, meaning because I am obligated to compensate him according to the basic הדין, and this is an obligation of full damages. So I said in the previous lecture that in order to be exempt from a smaller obligation, you need better guarding. After all, you want us not to obligate you even for half-damages? Then show that you are perfectly righteous. Because all in all we already went toward you because this is a tam ox; the fact is you pay only half-damages, not full damages. What, do you want to gain twice from the fact that this is a tam ox? You already gained—you’re paying half-damages. In order to show that even the half you shouldn’t have to pay, show me that you guarded in the best possible way. That you were completely righteous. Because in order to be exempt from a small obligation, you need to make a big effort. After all, it’s only a small obligation. In order not to impose even a small obligation on you, you need to show that there isn’t the slightest fault in you, nothing that would justify even a small obligation. Therefore you need superior guarding. With a mu’ad ox, where you pay full damages, in order to show that you are exempt, inferior guarding is enough. Because in order to impose full damages on you, I need to show that you are seriously negligent. Now, if you used inferior guarding, then maybe you’re not perfectly righteous, but a seriously negligent person you’re not. So should he pay half? So should he pay half in the case of a mu’ad? I mentioned in the previous lecture that according to Meiri, the question remains in place, and the discussion there in the passage raises exactly this issue. The tam component remains in place, even in this passage of guarding on page 46.
[Speaker D] But that was said regarding payment from the body itself, wasn’t it? What? That was said regarding the law of payment from the body itself, the tam component—
[Rabbi Michael Abraham] That half the payment is made from the body itself—what difference does it make?
[Speaker D] It’s the same thing. Right, but here the question is whether he is liable for half, and if he used inferior guarding, same thing—what’s the difference?
[Rabbi Michael Abraham] If we say that the tam component remains in place, then I’ll say it about this implication too. What’s the difference? After all, “and he did not guard it,” “and he did not guard it” applies to the liability of the mu’ad, everything that is added beyond the tam. The liability of the tam remains as it was. Right?
[Speaker D] But the question is, seemingly earlier—“and he did not guard it” applies to the whole full damage, half of which is the tam component, and about that it’s written, as it were, that inferior guarding is enough.
[Rabbi Michael Abraham] No, the opposite. Inferior guarding is enough to exempt you from the additional half. As for the first half, look at the parameters of a tam ox, and for a tam ox you need superior guarding. Here too, the same thing.
[Speaker D] Now one more point. On the face of it, this might perhaps be evidence for the Meiri. We look at an ox as either entirely innocuous or entirely forewarned. But in practice we know there’s an ox that is forewarned for a particular thing, on particular days, and not for something else. So that seemingly forces the Meiri to say that there is also some blame on the part of the injured party. Meaning, if the owner didn’t guard his forewarned ox, and in the end damage happened to an animal toward which it was not forewarned, then it’s considered an innocuous ox.
[Rabbi Michael Abraham] What do you mean? How—
[Speaker D] An innocuous ox? But he didn’t guard it; it’s a forewarned ox.
[Rabbi Michael Abraham] I didn’t understand. If this ox is innocuous on the odd-numbered days, then all the definitions of an innocuous ox apply to it only on the even-numbered days.
[Speaker D] With days it’s harder, with days it’s harder. But if, say, it’s forewarned toward a certain species, then an owner who doesn’t guard his ox—he—
[Rabbi Michael Abraham] He doesn’t guard it against donkeys, but he does guard it against oxen. So what difference does it make?
[Speaker D] But he didn’t guard it at all that one time. So that forces the conclusion that the injured party also has a role here. And with respect to that species to which it is forewarned—
[Rabbi Michael Abraham] —toward it, the injured party knew, because right now you’re talking about a case where it gored something toward which it was not forewarned.
[Speaker D] Right. So? What?
[Rabbi Michael Abraham] So the injured party knows that it is not forewarned toward it.
[Speaker D] And therefore there is a claim against him, because from the standpoint of lack of guarding, it’s the same claim. I’m forcing the Meiri to say that there has to be contributory fault here.
[Rabbi Michael Abraham] I didn’t understand. The owner has nothing to do at all with alternating forewarning. Why is that relevant?
[Speaker D] Because once the owner didn’t guard his ox, what difference does it make what it gored? He’s liable.
[Rabbi Michael Abraham] It does make a difference. He did guard it; he didn’t guard it because he knew there were only donkeys around, so he didn’t guard it. Toward donkeys it isn’t forewarned.
[Speaker D] But what if there are both?
[Rabbi Michael Abraham] If there are both, then it may be a case of “it began in negligence and ended in circumstances beyond his control.” That’s the topic on page 52 there, about a pit cover that is fit for camels and can withstand camels, and donkeys fell into it. Yes, that cover. Right, it’s the same idea. There it will be “it began in negligence and ended in circumstances beyond his control.” Maybe I’ll give an example to sharpen this. Nachmanides, in Parashat Yitro, when he discusses “Remember the Sabbath day to sanctify it” — so the Meiri—well, Nachmanides makes a distinction there between the prohibition and the positive commandment, between “remember” and “observe,” as in the first tablets and the second tablets. And he distinguishes there between a positive commandment and a prohibition. Then he explains the difference between a positive commandment and a prohibition. He says a positive commandment is love, and a prohibition is fear. What does that mean? It has various implications. He says a positive commandment is more important than a prohibition. Meaning, he basically starts with a certain difficulty. He says: for a positive commandment, one must spend up to a fifth of his assets; in order not to violate a prohibition, one must spend all his assets. So it comes out that a prohibition is more severe. On the other hand, a positive commandment overrides a prohibition, so it comes out that a positive commandment is more severe than a prohibition. Then he explains this in light of his distinction between love and fear: positive commandments are love, prohibitions are fear, and therefore all these practical differences are fine. So the Sdei Chemed asks there, and rightly so—I really never understood this Nachmanides—how exactly does this explain the contradiction? Bottom line, either the positive commandment is more severe or the prohibition is more severe. There’s still some contradiction here.
[Rabbi Michael Abraham] So the Sdei Chemed says—you need to explain more things there, but I won’t go into all the details—but the Sdei Chemed says like this, and this is an important point in logic that we don’t always notice. He says: on the side of fulfillment, a positive commandment is on a higher level than a prohibition. That’s obvious. To fulfill a positive commandment means a person is more righteous than someone who merely avoids stumbling in a prohibition. Right? But on the side of nullification… obviously violating a prohibition is much more severe than neglecting a positive commandment. And there’s no contradiction. On the contrary, one is the result of the other; they are two sides of the same coin. Precisely because the positive commandment is higher, failing to do it is a lesser transgression. And precisely because the prohibition is so basic, violating it is so severe, whereas keeping it—that is, refraining from violating it—is something basic, something minor. It’s not like fulfilling a positive commandment. In other words, there are two sides to the coin: on the side of fulfillment, the positive commandment is much higher; on the side of nullification, the prohibition is much more severe. On the negative side, the prohibition is more severe; on the positive side, the positive commandment is much higher.
[Rabbi Michael Abraham] And something like that is what I want to claim here too. To obligate in the case of an innocuous ox, a low threshold is enough. In fact, even an ox that has a presumption of being guarded, they still obligate me to pay. The threshold is low. In order to be exempt, you have to meet a very high threshold; you need superior guarding. Because in order to be exempt from something minor, you need very strong guarding. You have to be absolutely righteous in order that they not obligate you even for half-damages as a penalty. These are the same two sides. When something is minor, then in order to be exempt from it—that is, if you want to get out of it—you have to do something very significant. If you have a major obligation, then it’s enough that you’re not utterly wicked in order for us not to impose the major obligation on you. After all, a major obligation isn’t something you deserve easily. Okay?
[Rabbi Michael Abraham] So in the end what comes out is that with a forewarned ox—and as a matter of Jewish law, by the way, the ruling follows Rabbi Yehuda—with a forewarned ox the guarding required is lesser guarding, and with an innocuous ox the guarding required is superior guarding. Okay? Now, Tosafot on page 23a—I’m only reading one line, so we don’t need to get into it—says: “And it seems one can infer from here that a person must be more careful not to damage others than not to be damaged.” Now that’s an interesting point, because the criterion for lesser guarding is “as people ordinarily guard”—a normal wind, as people ordinarily guard, meaning the ordinary standard. But here he says that a person must be careful not to damage others at a higher level than to avoid being damaged. Now that fits better with an innocuous ox, because with an innocuous ox you need superior guarding in order to be exempt. With a forewarned ox, lesser guarding is enough. Okay?
[Rabbi Michael Abraham] So now the question is, again—at least according to what we see here—I think that at least with a forewarned ox, and maybe also with the other categories of damages as we’ll see later, it’s not correct to say that one must be more careful not to damage than not to be damaged. When I speak of not being damaged, plainly I mean a bailee who has to guard so that the property deposited with him not be damaged. Unless he means that “not be damaged” means like a person guarding his own property, and then we return to the reasoning I mentioned earlier, this contributory fault of the injured party. It’s true, there is contributory fault of the injured party, but bottom line, the basic responsibility is responsibility for the damager. We allow him to discharge his obligation with lesser guarding because the injured party also has to somehow guard himself. But a person has to be more careful not to damage than others have to be careful not to be damaged. Fine, okay.
[Rabbi Michael Abraham] Now I want to move to Rabbi Eliezer’s view. Maybe we’ll take a break now of three or four minutes, wash your faces, drink a cup of coffee, and come back, okay? We’ll return to Rabbi Eliezer. I’d just like to say something very important. Last year, when we only started this whole business with video and media and all these things, I was very skeptical. I thought to myself: who’s going to listen to this, who’s going to watch this? And here, thank God, we see that Torah reaches everywhere. There are Jews sitting at home in isolation or in faraway places, and suddenly they feel part of the community. That is the power of Torah. Torah is not limited to one place; it’s not limited to one study hall. It’s something that breaks boundaries.
[Rabbi Michael Abraham] Today we’ll learn the words of the Talmud in tractate Sukkah, where the Talmud discusses the matter of a commandment that comes through a transgression. The Talmud says: what is the source for the fact that a stolen offering is invalid, and how does that connect to the essence of serving God with a whole heart? “From when do we recite the Shema in the evenings? From the time the priests enter to eat their terumah, until the end of the first watch—these are the words of Rabbi Eliezer. And the Sages say: until midnight. Rabban Gamliel says: until dawn rises. It happened that his sons came from a banquet. They said to him: we did not recite the Shema. He said to them: if dawn has not yet risen, you are obligated to recite it. And not only this did they say, but all that the Sages said until midnight—their commandment extends until dawn rises. The burning of fats and limbs—their commandment extends until dawn rises. And all things eaten for one day—their commandment extends until dawn rises. If so, why did the Sages say until midnight? In order to distance a person from transgression.”
[Rabbi Michael Abraham] The Talmud opens with the question: “Where is the tanna standing that he teaches ‘from when’?” Meaning: what is the tanna relying on when he asks “from when,” “when is the time”? He hasn’t even yet told us that there is an obligation to recite Shema. The Talmud answers: “The tanna is relying on Scripture”; the tanna relies on the verse in the Torah, as it is written: “when you lie down and when you rise up.” And this is what he teaches: when is the time of the lying-down Shema? From the time the priests enter to eat their terumah. And if you say: why did he open with the evening service first? Why didn’t he begin with the morning Shema, which is the first commandment of the day? He taught evening first because it is written in the creation of the world: “And there was evening and there was morning, one day.” The Torah puts evening before morning, and therefore the Mishnah also puts the evening Shema before the morning Shema. Another explanation in the Talmud is that the evening Shema is the first commandment that takes effect upon a person with the entrance of the day, because in Judaism the day begins at night. The Mishnah mentions the time when the priests enter to eat their terumah, which is the time of the appearance of the stars. A priest who became impure and immersed during the day must wait until sunset in order to eat terumah, and that is the time when the stars appear and the night begins.
[Rabbi Michael Abraham] Okay, we’re back. Is everyone here? Binyamin? And actually, I was thinking during the break—Binyamin, I see he hasn’t arrived yet—but there’s another formulation that I think I might be able to accept regarding a person’s responsibility for his property merely by virtue of the fact that it is his property. Hear me, Binyamin? There’s another formulation I thought of that perhaps I’m more willing to accept than what you presented earlier. Namely: they impose responsibility on you for your property not because they demand that you guard it, but because you’re the only one who has the possibility of guarding it and thereby becoming exempt from the obligation. The obligation is still one of insurance-like responsibility; that is, they are not demanding that you guard it. It’s simply fairer to impose it on you because you at least have the option of making a greater effort to guard it, and then you won’t have to pay.
[Speaker E] But the injured party also has the option to guard. What? No, wait, the injured party also has the option—
[Rabbi Michael Abraham] —to guard the property—
[Speaker E] —his, so that it won’t be damaged.
[Rabbi Michael Abraham] Less plausible. If everyone guards his own ox, that seems to me much more reasonable than that the injured party should start protecting himself against everything that moves; otherwise he’d never leave the house. So the point here is like what they say in the laws of bailees. Why is a bailee obligated to take an oath? The usual explanation is not because he is at fault, of course, and he is no more at fault than the owner. And if he speaks, he has a presumption of honesty, so why assume he’s not telling the truth? Rather, with a bailee, he is the only one who could know, who can know, what happened. You can’t impose an oath on the depositor because by definition, if something happened, it happened in the bailee’s house. The only one who could know about it is the bailee. So we don’t impose the oath on him because he is guilty, but because he is the only one who can actually provide me the goods I am demanding from him—to swear about what happened. And therefore the same thing here too: he was also the only one who could have guarded properly so that this wouldn’t happen. You can add that too. Not only does he know what to swear about, but the property was also in his possession, and therefore he could guard it properly so that in the end nothing would happen that would force him to swear. If you forced the depositor to swear, he also doesn’t know what happened, and it isn’t in his hands—he couldn’t have guarded it; the bailee could have guarded it. So therefore, although normally “the burden of proof is on the one who seeks to extract,” and the depositor is demanding money from the bailee, nevertheless we obligate the bailee to swear because he is the one who can provide us the goods. So perhaps that kind of formulation—yes, that formulation is closer for me at least.
[Speaker B] And what’s stopping you from just saying it all the way through, as if—
[Rabbi Michael Abraham] As if what? That he is obligated to guard? I have no problem saying it all the way through, only then you’re back to the first side. I said that. I only said it as the first side. I’m looking for something that—
[Speaker B] But the way you formulated it seems equivalent to me. What difference does it make whether he is obligated to guard or—
[Rabbi Michael Abraham] No, that’s a very big difference. What do you mean? The claim is that the basis against him is an insurance basis, not a basis of negligence in guarding. The practical difference would be, for example, on whom the burden of proof lies.
[Speaker B] I’m not sure that that—
[Rabbi Michael Abraham] I’m not coming to him with a claim that he failed to guard. He has responsibility. I’m not coming to him with a claim that he failed to guard, and therefore the burden of proof will be on the one seeking to extract. It’s just that—why did I impose the responsibility on him? Because he is the one who can guard and be exempt from the responsibility. Fine, so that’s—
[Speaker B] About the burden of proof, you yourself said that you can disconnect it from the question.
[Rabbi Michael Abraham] Right, I brought that up, but I still brought it up because it illustrates the—
[Speaker B] No, no, that’s misleading.
[Rabbi Michael Abraham] There are things—it’s not completely independent. You can reject it, it’s not—let’s not exaggerate.
[Speaker B] It can and should be rejected. I think it proves nothing.
[Rabbi Michael Abraham] No, no, I’m not as decisive as you are. I said it can be rejected, but it’s not for nothing. There is a side here where the burden of proof is indeed some kind of indication. You need explanations for why the burden of proof is not a practical difference. And there are such explanations. Doesn’t matter. But in a basic sense, this is a practical difference that sharpens the distinction between the two possibilities, and for me that’s enough. I don’t care at the moment about the actual ruling. You can say that this whole conceptual inquiry has no practical difference at all, so why do it?
[Speaker B] That’s my feeling.
[Rabbi Michael Abraham] Okay, so I said that—I said that there too—even though I’m not sure. For example, in the case of inciting, in my opinion there’s no way out. Inciting is an unequivocal practical difference. A practical difference in the sense that someone who understands the obligation only as a duty arising from negligence won’t be able to explain inciting. Why not?
[Speaker B] I can say that it’s negligence, but the duty the negligence imposes on me is only a safety duty, not beyond that.
[Rabbi Michael Abraham] What? That I incited the dog?
[Speaker B] No, no, no—in inciting… ah, you mean that inciting is proof that there is a possibility of obligating the damaging animal itself. That I agree with. So that’s the practical difference.
[Rabbi Michael Abraham] No, it’s related—
[Speaker B] It’s going to obligate the person who caused the damage.
[Rabbi Michael Abraham] No. If the obligation is negligence in guarding, you can’t explain the dog.
[Speaker B] No, only—
[Rabbi Michael Abraham] Only if the obligation is “his property that caused damage,” responsibility for his property that caused damage. Okay, so I understood correctly your inquiry about the dog’s obligation.
[Speaker B] The two are not dependent on one another. I can say—and this I agree—that there is such a thing as obligating the damaging property itself, and then the question is whether the owner steps into its place or not. That’s fine. Apart from that, there’s the question whether when a person failed to guard, he is liable in a way of safety responsibility or liable for negligence in guarding. And on that inquiry I’m undecided.
[Rabbi Michael Abraham] But it’s the same thing. When I say—after all, with the dog, the whole idea with the dog was: if what obligates me is the fact that I failed to guard, then with the dog I would certainly be exempt. How can one explain that with the dog I am exempt according to that view? It can’t be explained.
[Speaker B] No, because there they’re not approaching you from that angle. They say that there, they come to blame the dog.
[Rabbi Michael Abraham] Why? Because it’s not negligence in guarding that obligates, but responsibility. I only explained what that responsibility means—responsibility means rolling the dog’s liabilities onto you. That’s just an explanation of the other side of the inquiry. It’s not a different thing.
[Speaker B] Okay, fine. I have an explanation for that, but it seems to me it already goes beyond—
[Rabbi Michael Abraham] Fine, so let’s continue. In any case, I’m moving to Rabbi Eliezer. Rabbi Eliezer says: “It has no guarding except a knife.” As I said, the plain meaning is that the basis of liability for a forewarned ox is responsibility. I would even say completely safety-based responsibility. Nothing will help you. Meaning, even if I asked earlier why proper guarding exempts you from safety responsibility—I talked about force majeure and things like that—according to Rabbi Eliezer, that is exactly the point. It has no guarding except a knife. Why? Because it is safety responsibility. Period. No proper guarding will help you because this is an insurance company. I’m not coming to you with claims whether you guarded or did not guard. You are responsible for what the dog did or what the ox did. That’s all. Therefore it’s irrelevant to discuss what level of guarding you used. It doesn’t matter. You are not guilty and everything is fine, but know that you are responsible for everything that happened. That’s basically the claim.
[Rabbi Michael Abraham] And plainly it seems that Rabbi Eliezer is really the purest expression of the safety-based approach, a view that says: I am responsible for what my ox did, with no connection to my guilt and my guarding, and no matter what I did or did not do. According to this view, “it has no guarding except a knife” means not necessarily that you are required to slaughter it, but that as long as you haven’t slaughtered it, expect damage. In other words, know that you cannot be calm unless you slaughtered the ox. If you don’t want to, fine, but know that you are taking a risk.
[Rabbi Michael Abraham] Then—let me put it differently—one could perhaps have rejected this the way I rejected Rabbi David Poveresky in the second lecture. I said there that maybe there is a prohibition in the very act of my animal. Meaning, the problem is not that I didn’t guard it, but that my animal caused damage; that itself is, as it were, the prohibition that I committed. But I think that in this context we are not talking about prohibitions; we are talking about what creates liability. And all I’m saying is that my animal caused damage, and that obligates me to pay. Okay—safety responsibility, or they transfer the animal’s liability onto you, the two formulations I mentioned earlier.
[Rabbi Michael Abraham] Because you have to understand: if he guarded in a perfect way—not a knife, but completely perfect guarding, the best possible guarding—and nevertheless this happened in the most complete circumstances beyond his control, according to Rabbi Eliezer he is liable. And here, obviously, it can’t be that he committed a prohibition, right? He guarded in the best possible way, so there’s no prohibition here. That is seemingly evidence against the She’iltot that we saw, which derives the payment obligation from the prohibition, or derives the prohibition from the payment obligation, saying that the payment obligation indicates that there was a prohibition here. Here we see that this is very implausible according to Rabbi Eliezer, because according to Rabbi Eliezer, even though he guarded in the best way on earth, and then seemingly there is no prohibition here—it’s really beyond his control—nevertheless there is a payment obligation. So you see that the payment obligation is not an outgrowth of the prohibition.
[Rabbi Michael Abraham] And here I meant to say what I said earlier: perhaps one could say that the very act of the animal is considered the prohibition, not the failure to guard—what I also said against Rabbi David Poveresky. Theoretically, one could also say what it seems to me Binyamin also said in the previous lecture: what do you mean? As long as you haven’t slaughtered it, you are not considered under compulsion, at least if it’s a forewarned ox—yes, I’m talking about a forewarned ox. So at least if it’s a forewarned ox, know that if you didn’t slaughter it, you are not under compulsion, and therefore one can still come to you with claims, and the tort basis of the claim is because I have a claim against you that you did not guard properly. Because proper guarding for a forewarned ox is only to slaughter it. Again, maybe you are not obligated to do that, but still the basis of the claim is that you did not guard it, and therefore you have to pay. Okay.
[Rabbi Michael Abraham] Now here in the Meiri—again, I’ll share the screen—the Meiri, and also Tosafot as we’ll soon see, says as follows: “And Rabbi Eliezer says: it has no guarding except a knife. And it was explained in the Talmud that Rabbi Eliezer did not come to obligate him if he guarded it with superior guarding, for after superior guarding there is nothing more, whether for an innocuous ox or for a forewarned ox.” Meaning, again, he assumes what I said earlier: if you guarded with superior guarding, how can anyone come to you with claims? You can’t come with claims against a person who guarded with superior guarding. But he continues and says: if you can’t come to him with claims, then clearly he also won’t be liable to pay. “Rather, he does not discharge his duty toward Heaven until he removes it from the world. But with regard to payment, the Jewish law follows Rabbi Yehuda, and with regard to discharging his duty toward Heaven, the Jewish law follows Rabbi Eliezer.”
[Rabbi Michael Abraham] So what is he saying? He is basically saying that in practice Rabbi Eliezer follows Rabbi Yehuda’s view—that a forewarned ox—no, sorry, Rabbi Meir’s view—that a forewarned ox requires superior guarding. But with superior guarding, you will be exempt from payment; and when he says “it has no guarding except a knife,” that is only for discharging one’s duty toward Heaven. If you want to be clean, to discharge your duty toward Heaven, only slaughtering it will do. But as far as payment is concerned, you are exempt even with superior guarding. In that sense Rabbi Eliezer is like Rabbi Meir. Okay.
[Rabbi Michael Abraham] Now we need to understand this a bit, because something very strange comes out here. He assumes—I said earlier, how can there be a prohibition when he guarded with superior guarding? And I said: here is the reasoning we see in the Meiri. But notice: in the Meiri we see the opposite. In the Meiri we see the reverse: if you guarded with superior guarding, there is a prohibition here, but there will not be a payment obligation. Meaning, if you guarded with superior guarding, then clearly there won’t be a payment obligation—after superior guarding there is nothing—but the prohibition, the duty toward Heaven, remains. Meaning, on the level of prohibition, even superior guarding is not enough. Now that is really strange. I would have understood if he had said the opposite: there is no prohibition, because you did everything you could; as for payment, there is insurance-like responsibility, as I said above, so whatever your animal did, you are responsible—you are the insurance company—so true, you are guilty of nothing, but you still pay even with superior guarding; only a knife can exempt you. But regarding prohibition—if you guarded with superior guarding, you were under compulsion. Why would there be a prohibition? Yet the Meiri says exactly the opposite. He says regarding payment, superior guarding exempts; but there is still prohibition even with superior guarding—you still must discharge your duty toward Heaven even with superior guarding—which is strange. Why this direction is strange—we’ll see later that it is anchored in the Talmud itself—but I’m saying on the level of reasoning, it is strange.
[Rabbi Michael Abraham] There are apparently two possibilities here. One possibility is that by “discharge one’s duty toward Heaven” he does not mean prohibition. There is a famous Meiri that we’ll see on the next page, 56a. He says as follows: “Everything that we have written here that he is liable by the laws of Heaven means that he is liable in restitution. But as for prohibition—even what he is exempt from by the laws of Heaven nonetheless contains prohibition; rather, the discussion here is with respect to accounting. And from here the great authorities of the generations wrote”—that is the Ba’al HaHashlamah—“that whoever is said to be liable by the laws of Heaven is disqualified from testimony until he makes restitution, and this seems correct, for since he is obligated to make restitution, the status of theft applies to him until he returns it.”
[Rabbi Michael Abraham] He says: we are speaking here about cases where the doer is exempt by human law but liable by the laws of Heaven—this is our next topic, indirect damage in general. So he is exempt by human law and liable by the laws of Heaven. What does “liable by the laws of Heaven” mean? Usually people understand it to mean liable to punishment: when he reaches the heavenly court, he’ll get punished, but he doesn’t have to pay. The Meiri says no: “liable by the laws of Heaven” means obligated to pay, just not by human law but by the laws of Heaven. Not liable to punishment—liable to pay the injured party. It’s just that, for some reason, the court does not extract it, because it is an obligation by the laws of Heaven. But so long as you haven’t paid, you are a thief and disqualified from testimony as a thief—to that extent. And still it is not extracted in court; it is an obligation in order to discharge one’s duty toward Heaven—he is liable by the laws of Heaven.
[Rabbi Michael Abraham] Here, of course, he says that in any case there is also prohibition. Meaning, for him prohibition is more severe than the obligation to discharge one’s duty toward Heaven. But the very conceptual distinction he made in the term “discharge one’s duty toward Heaven” or “by the laws of Heaven,” separating payment obligation from prohibition—we can perhaps use that here too. And the claim would be that if you guarded with superior guarding, then you are not obligated to pay. But you are obligated by the laws of Heaven to pay—not that there is a prohibition here, but rather that by the laws of Heaven they expect you to take responsibility for what your animal did. It is not a question of prohibition. Meaning, there may really be no prohibition because you are under compulsion: you guarded with superior guarding, what else could you do? But still, as I said earlier, the injured party also did nothing. What do you want from him? Therefore, by the laws of Heaven, since your animal caused damage, they nevertheless expect you to take responsibility and pay—not “by the laws of Heaven” in the sense of punishment for a prohibition, because you committed no prohibition. This is an insurance-like responsibility in order to discharge one’s duty toward Heaven. That is the idea.
[Rabbi Michael Abraham] Then what I said earlier is not difficult. Earlier I asked: if you guarded with superior guarding, then surely there is no prohibition. Maybe there is still a payment obligation because this is insurance, but there is no prohibition. So how can the Meiri say the opposite—that specifically there is prohibition and no payment obligation? What I’m saying is: no, he is not saying that there is prohibition. He is saying that there is a payment obligation, but only by the laws of Heaven and not by human law, because by human law they extract from you on the basis of negligence in guarding, and if you guarded with superior guarding you were not negligent. Okay?
[Speaker C] But that doesn’t fit the Meiri, with the Meiri’s words. The Meiri says: “As for prohibition, even what he is exempt from by the laws of Heaven nonetheless contains prohibition.” Even what he is exempt from. So certainly what he is liable for by the laws of Heaven contains it.
[Rabbi Michael Abraham] Right, that’s what I said—I noted that at the beginning of my remarks. I said that the Meiri here creates the opposite hierarchy. He is basically saying that prohibition is broader than the payment obligation, even the payment obligation by the laws of Heaven. But I can use his very conceptual distinction: when they tell you “liable to pay by the laws of Heaven,” that does not necessarily speak about prohibition; it may speak about a payment obligation in order to discharge one’s duty toward Heaven. And here I am indeed applying it the other way around. I want to argue that maybe there really is no prohibition because he is under compulsion—“after superior guarding there is nothing,” as the Meiri says. So then why does he nevertheless—what does “liable by the laws of Heaven” mean? “Liable by the laws of Heaven” means—you see, why is there nothing after superior guarding? Because if you guarded with superior guarding, you cannot come to him with claims of negligence in guarding. Right? So the basis of the claim, according to Rabbi Eliezer according to the Meiri, is specifically negligence in guarding. And he says: if you guarded with superior guarding, you cannot come to him with claims of negligence in guarding. The Meiri says yes—but by the laws of Heaven they expect you also to be an insurance company. By the laws of Heaven they expect you to take responsibility: if your property caused damage, pay. Therefore by the laws of Heaven—not that there is a prohibition here; the Meiri is not talking here about prohibition—rather he is speaking about the obligation to pay, but by the laws of Heaven. And I’m also stating the difference: by the laws of Heaven they expect you to be an insurance company. By the standards of the court, what they expect of you is this: if you didn’t guard properly, the court will obligate you to pay. That is the court’s role. But by the laws of Heaven they expect you to be responsible for everything your property does, even if you are not guilty, because in the end it is your property. Then perhaps there is not such a great difficulty in the Meiri’s words.
[Rabbi Michael Abraham] A second way to explain the Meiri is to say that there really is a prohibition here even if you guarded with superior guarding, because, as Rabbi David Poveresky said, the prohibition stems from the very fact that my property caused damage; the damage caused by my property is itself the prohibition that I commit. There is room here to discuss whether you have an obligation to kill the ox once it has become established as a forewarned ox—am I really obligated to kill it? Or is it only that I’m permitted to take the risk, but know that you are taking a risk? And even if that is responsibility of prohibition, and even if it is payment responsibility, one can still perhaps speak about responsibility in terms of prohibition.
[Rabbi Michael Abraham] Where do we see something like that, for example? In the laws of doubts. Rabbi Shimon Shkop talks about this in Sha’ar 1. Regarding the laws of doubts, he discusses the question: what is the prohibition involved in “in a Torah-level doubt one must be stringent”? What is that prohibition? Is there a prohibition in the very entering into the doubtful situation? To eat something that is a doubtful prohibition—is that itself prohibited? Or only if it turns out that the thing was prohibited—in other words, at the time I ate I don’t know; I’m in doubt—if it turns out that the thing was prohibited, then I cannot say that I was under compulsion or that I acted inadvertently. There is responsibility on me, because they warned me that there is a doubt here, and in a doubt one must be careful. Here you see that this is responsibility in terms of prohibition. Essentially, what does it matter what becomes clear in the end? What becomes clear in the end doesn’t depend on me. What I did, I already did. What becomes clear in the end is a question of reality. Why is the prohibition imposed on me only if it turns out in the end that what I ate really was prohibited? Because “a Torah-level doubt requires stringency” is responsibility in terms of prohibition. Meaning: you can take the risk, but know that if in the end it turns out that this thing is prohibited, you will not be able to claim you were under compulsion or acting inadvertently. You will not be considered under compulsion or acting inadvertently, because we warned you. Okay?
[Rabbi Michael Abraham] So similarly I’m saying here: perhaps you are not obligated to slaughter the animal, but know that if you do not slaughter it, then you have responsibility in terms of prohibition, or responsibility for payment—all what I said earlier in the Meiri. There’s another example of this. There is a Talmud in Shevuot 18. The Rashba sharpens it more, but that is the plain sense of the Talmud. The Talmud says there that someone who has relations with his wife close to the time of her expected period—“period dates” are rabbinic according to the Jewish law. So when we hear that relations between husband and wife close to the expected period are forbidden, that is a rabbinic prohibition. Now the person was lax with a rabbinic prohibition—or both of them were lax with a rabbinic prohibition—and they had relations. During the relations, the woman saw blood. That is already a Torah-level prohibition; he is having relations with a menstruant. Okay? So now the question is whether he is under compulsion. From the Talmud it emerges that he is not under compulsion but rather inadvertent. Why? After all, the prohibition of being close to the expected period is only rabbinic. Of course he transgressed the rabbinic prohibition; that is obvious. And here too it is clear that he transgressed the prohibition even if she would not have seen blood. The prohibition is the very act of approaching at a time close to the expected period; it does not depend on what will happen in practice. But if in practice it did happen in the end—actual blood came out—then you transgressed a Torah-level prohibition. You transgressed a Torah-level prohibition. It is called inadvertent and not intentional, because you did not know there would be blood, but you cannot say that you were under compulsion—that is the claim. Even though the prohibition they warned you about was only rabbinic. But in the end they did warn you. The whole rabbinic prohibition exists because they warned you that perhaps she would see blood at that time. So you cannot say: listen, I didn’t know she would see blood, I was under compulsion. No—you were not under compulsion; you were inadvertent. So again, “close to the expected period” is basically a rabbinic prohibition that also serves as a kind of assigning of responsibility for a Torah-level prohibition. Conditional responsibility. That is, if something happens in the end, know that you are taking a risk and it may turn into a Torah-level prohibition, with liability for a sin-offering. So similarly one could say here as well.
[Rabbi Michael Abraham] Now there is Tosafot on 46a that says something similar to the Meiri too. The Talmud—or before Tosafot, the Talmud on page 46 says as follows: from where is the source for Rabbi Eliezer’s words? Rabbi Eliezer says: “It has no guarding except a knife.” Rava said: what is Rabbi Eliezer’s reason? Because the verse says: “and he did not guard it”—again, there is no more guarding for this one. No level of guarding will help you; there is no guarding for this fellow. Okay? That is how he learns it from the verse.
[Rabbi Michael Abraham] Abaye said to him: if so, with regard to what is written about a pit, “and he did not cover it”—yes?
[Speaker B] “If a man opens a pit or if—”
[Rabbi Michael Abraham] “—if a man digs a pit and does not cover it.” Okay? So what does “and he did not cover it” mean? There too should you derive: there is no more covering for this one? Then you would also obligate in the case of a pit in every situation, even if the person covered it—there is no more covering for the pit. Once you made a pit, it has no covering. And if you say so too—maybe Rabbi Eliezer really does say that. But didn’t we learn: if he covered it properly, and an ox or a donkey fell into it and died, he is exempt? We see that with a pit, proper covering is effective. Again, the assumption is that Rabbi Eliezer also agrees to that. Because Rabbi Eliezer is a tanna—you have to understand—so he could have disagreed with it. Who says that this Mishnah is against him? The assumption is that if Rabbi Eliezer did not disagree there, apparently he also accepts this derivation, and therefore with a pit he does not make the same derivation.
[Rabbi Michael Abraham] Rather, Abaye said: Rabbi Eliezer’s reason is as it was taught in a baraita. Rabbi Natan says: from where do we know that a person should not raise a dangerous dog in his house and should not place a rickety ladder in his house? As it is said: “Do not place blood in your house.” Therefore Rabbi Eliezer says: “It has no guarding except a knife.” What is this? How does Rabbi Natan’s source help me here? It is forbidden for a person to keep a dangerous dog in his house, a rickety ladder in his house, a goring ox in his house—fine, it’s forbidden. Okay, how is that related to the question of what level of guarding is being discussed here? Seemingly, from this Talmudic passage it emerges that the discussion of Rabbi Eliezer—just as we saw in the Meiri above—is really not a monetary discussion but a discussion of prohibition. Right? Because the source they bring is a source of prohibition: a person must not raise a dangerous dog in his house.
[Rabbi Michael Abraham] But the discussion—the dispute in the Mishnah, after all Rabbi Eliezer disputes Rabbi Meir and Rabbi Yehuda—the dispute there in the Mishnah is about payment liability, not about prohibition. From the source the Talmud brings here, it seemingly comes out that Rabbi Eliezer is not coming at all to disagree with the other tanna’im about the required level of guarding. There he agrees with Rabbi Meir: superior guarding is enough. He disagrees with Rabbi Yehuda, but agrees with Rabbi Meir. Superior guarding is good enough. He comes to add a layer of prohibition. He comes to say: but know that, in general, if you have a forewarned ox in the house, you violate the prohibition of raising a dangerous dog in one’s house, regardless of payment liability. As for payment liability, you are exempt. You are exempt if you guarded with superior guarding. But if you did not slaughter it, you violated the prohibition of raising a dangerous dog in one’s house.
[Rabbi Michael Abraham] By the way, from this it also emerges that there really is an obligation to slaughter it. Earlier I asked whether there is an obligation to slaughter it or whether it is only responsibility—responsibility in terms of prohibition. Plainly, the prohibition against raising a dangerous dog is a full prohibition—it is forbidden to keep it. So apparently this really yields even more than what we saw in the Meiri. In the Meiri I said one could still understand it as a payment obligation in order to discharge one’s duty toward Heaven. Here it is explicitly written that it is a prohibition.
[Rabbi Michael Abraham] But here the medieval authorities (Rishonim) disagree on this passage. Tosafot there says: “Rather, Rabbi Eliezer’s reason is as it was taught”—and Tosafot asks: difficult; from this reason too, a pit should not suffice with covering, right? What did you answer about the pit? There too you should say the same thing: just as a person may not raise a dangerous dog in his house, so too a person should not make a pit even if it is covered, because of Rabbi Natan. And one can answer that a pit has a better fix when he covers it properly than a goring ox. There is a better way to guard a pit if you cover it properly than a bull, because with a bull you can never know where it will come from. And Tosafot continues: “Also, at first, certainly the assumption was that Rabbi Eliezer was speaking with regard to payment. Rabbi Eliezer is speaking regarding payment. But now that we conclude that the reason is like Rabbi Natan, he is not speaking regarding payment, but only regarding prohibition, that it is forbidden to keep it.” Then he continues regarding the pit.
[Rabbi Michael Abraham] So what does he say? He reads the Talmud straightforwardly. At first we really thought Rabbi Eliezer came to introduce a law in the laws of payment liability. The Talmud says no, no—Rabbi Eliezer is speaking only about the prohibition. Notice: this is more than the Meiri. In the Meiri I could still say this is a payment obligation in order to discharge one’s duty toward Heaven, not prohibition. In Tosafot it is written that it is prohibition. In Tosafot it sounds as though you have to slaughter this ox. If you have a forewarned ox after three times, you must slaughter it. Okay?
[Rabbi Michael Abraham] In Rashi it does not sound that way. In Rashi it sounds as if we are speaking here about payment liability. And the Rashba also brings two opinions here. The medieval authorities discuss this passage extensively; I won’t go through all of them here. Several other authorities talk about it too. How will they understand it? The authorities who say we are speaking about payment liability—that is the plain sense of the Mishnah and the Talmud. Even though here in the Talmud it doesn’t look that way, from the context it is clear that Rabbi Eliezer is speaking about payment; he is not speaking about prohibition.
[Rabbi Michael Abraham] Seemingly, one would have to say that this is good evidence for the She’iltot, because the She’iltot links the payment obligation to prohibition. If we see that there is a prohibition against keeping it, then somehow it is self-evident to the Talmud that if it caused damage, then one probably also has to pay. To the point that I’m surprised they don’t bring this source as the source for the prohibition. “A person should not raise a dangerous dog in his house”—that is the source for the prohibition against causing damage. Everyone looks for the source for the prohibition against causing damage, and the She’iltot says the source for the prohibition against causing damage is the fact that there is a payment obligation. Why? He assumes that there is apparently no payment obligation without some underlying prohibitory foundation in the background. I said that all the other authorities do not accept that, because prohibition is one thing and payments are another. But here in the Talmud not only do we see that the prohibition is connected to payment, we also see that the She’iltot didn’t need to infer that there is a prohibition from the fact that there is a payment obligation—there is already a verse for the prohibition.
[Speaker C] According to that, even superior guarding would not exempt him regarding the prohibition.
[Rabbi Michael Abraham] Right. Right. Regarding the prohibition. Regarding payment, yes.
[Speaker C] Why regarding payment yes? Why regarding payment yes? After all, if the payment is derived from the prohibition, then if he is forbidden altogether to keep it in his house—
[Rabbi Michael Abraham] And so it really comes out that in the passage here you can actually see the dispute among the medieval authorities (Rishonim) about the connection between the prohibition and the obligation to pay. Okay. Now in our passage, I just want to finish for today, so in our passage the Talmud says—one second, I’ll just put the Talmudic text in here so you can see what we’re talking about: “The rabbis taught”: after the Mishnah, yes? “What is considered adequate, and what is considered inadequate? A door that can withstand a normal wind—this is adequate. One that cannot withstand a normal wind—this is inadequate.” Rav Mani bar Patish said: “Who is the tanna who holds that for an ox forewarned for goring, lesser guarding is enough? It is Rabbi Yehuda. As we learned: If its owner tied it with a rein and locked it in properly, and it went out and caused damage, whether it was an innocuous ox or a forewarned ox, he is liable—these are the words of Rabbi Meir. Rabbi Yehuda says: For an innocuous ox he is liable; for a forewarned ox he is exempt, as it says, ‘and its owner did not guard it’—but this one was guarded. Rabbi Eliezer says: It has no guarding except the knife.” That’s the Mishnah we saw on page 45. So why is it Rabbi Yehuda? On the simple level the meaning is that it doesn’t fit either Rabbi Meir or Rabbi Eliezer, right? It follows Rabbi Yehuda regarding a forewarned ox, right? Now with a forewarned ox, seemingly it could also fit Rabbi Eliezer, no? If Rabbi Eliezer is speaking only about the prohibition and not about monetary liability, then I don’t know—regarding the money, maybe he also agrees with the Mishnah. Who said this can’t fit Rabbi Eliezer and only Rabbi Yehuda? It seems the Talmud assumes that according to Rabbi Eliezer, even if he is speaking only about the prohibition, in monetary law too he does not agree with Rabbi Yehuda. According to his view, certainly superior guarding is required; lesser guarding is not enough. It’s just true that you don’t need a knife, but in order to be exempt from payment, superior guarding is enough, and several medieval authorities (Rishonim) write this explicitly. But that’s what apparently emerges from the Talmud here. According to Rashi and those who follow his approach there on page 46, this is meant literally: Rabbi Eliezer really is speaking about monetary law, not about the prohibition, and therefore this truly does not fit Rabbi Eliezer, because according to Rabbi Eliezer there is no guarding except the knife, whereas here it says lesser guarding is sufficient. So therefore here in the Talmud it seems simply that Rabbi Eliezer is speaking about monetary law. According to those—according to Meiri and Tosafot—who say that he is speaking about the prohibition, there is no choice but to say that even regarding monetary law he does not accept that for a forewarned ox one is exempt with lesser guarding. He holds like Rabbi Meir, that for a forewarned ox you need superior guarding, but with truly superior guarding you really are exempt. And therefore the Talmud here says that the Mishnah follows Rabbi Yehuda and not Rabbi Eliezer and not Rabbi Meir. Now regarding the identification of the levels of guarding: we saw—I began talking about this at the beginning of the first class—that the Talmud here says a forewarned ox needs only lesser guarding. What does it mean that lesser guarding is enough for it? In the Mishnah it says: “One who brings sheep into a pen and locks it before them properly.” You see? “Locks it before them properly.” The Talmud identifies “properly” with lesser guarding, right? And afterward they say: what is “properly”? Something that can withstand a normal wind. Meaning, “properly,” “lesser guarding,” and “normal wind”—all of these are basically identifying the kind of guarding one must provide. By the way, that is also the Jewish law—the Jewish law follows Rabbi Yehuda. So that is what determines the level of guarding needed in order to be exempt. Okay? Now the Talmud says: why are you assuming the Mishnah is according to Rabbi Yehuda? It could be that the Mishnah, which is satisfied with lesser guarding, is according to Rabbi Eliezer—maybe Rabbi Eliezer ben Yaakov, sorry—whether innocuous or forewarned, yes. “Who is the tanna who holds that a forewarned ox requires only lesser guarding?” Sorry. So Tosafot, under the heading “Who is the tanna” here in our passage, has difficulty with this. The Talmud assumes we are dealing with a forewarned ox, and therefore it says there is no choice but to say that our Mishnah is Rabbi Yehuda, who is satisfied with lesser guarding. But one could have said that it refers both to an innocuous ox and to a forewarned ox, and then it would specifically fit Rabbi Eliezer ben Yaakov, who for both forewarned and innocuous is satisfied with lesser guarding. Tosafot asks: “Why not say that our Mishnah deals both with an innocuous ox and with a forewarned one, and is according to Rabbi Eliezer ben Yaakov?” Because it seems to him that the Mishnah is dealing with a forewarned ox alone, since it mentions sheep, and they are not usually associated with goring but rather with eating and trampling, since they do not ordinarily intend to cause damage. For this is what the Talmud infers below, and at this stage the Talmud assumes that an animal forewarned for eating and trampling is like one forewarned for goring. And therefore it says it is Rabbi Yehuda, because according to Rabbi Meir, just as superior guarding is required for an ox forewarned for goring, so too it is required for eating and trampling, even though with goring the verses are explicit; we learn the unspecified from the explicit.” In other words, at this stage of the Talmud, the Talmud assumed that every forewarned ox means just that—a forewarned ox. Why? Because the Mishnah deals with sheep. Sheep don’t have goring; sheep have eating and trampling. Eating and trampling are forewarned from the outset. And therefore this whole discussion here of proper and improper apparently refers to a forewarned case and not an innocuous one. And therefore the conclusion is that it is specifically Rabbi Yehuda and not Rabbi Eliezer ben Yaakov. Okay? And Tosafot notes—he hints to the fact that later in the Talmud itself they back away from this, because the Talmud says: “You may even say it is Rabbi Meir, because eating and trampling are different, for the Torah reduced the requirement of guarding them. As Rabbi Elazar said, and some say it was taught in a baraita: There are four things for which the Torah reduced the requirement of guarding, and these are: a pit, fire, eating, and trampling. A pit, as it is written: ‘If a man opens a pit, or if a man digs a pit, and does not cover it’—but if he covered it, he is exempt. Fire, as it is written: ‘The one who kindled the fire shall surely pay’—until he acts in a manner similar to one who kindled.” Like the “did not guard it” of the forewarned ox; “did not cover it” is like “did not guard it”—we already saw that it’s the same thing. “Fire, as it is written: ‘The one who kindled the fire shall surely pay’; eating, as it is written: ‘and it consumed in another’s field’—until he acts in a manner similar to ‘consumed’; trampling, as it is written: ‘and he sent forth’—until he acts in a manner similar to ‘sent forth.’ And it was taught: ‘and he sent forth’—this refers to trampling, and so it says, ‘those who send forth the foot of the ox and the donkey,’” etc. All right? In short, the Torah reduced the requirement of guarding for all of these, and therefore what? Therefore this can also fit Rabbi Meir. And what about a forewarned ox?
[Speaker C] A forewarned ox—he says it requires superior guarding, but for eating and trampling, lesser guarding is enough.
[Rabbi Michael Abraham] So in our Mishnah we’re dealing only with eating and trampling, right? Only with eating and trampling and not with goring at all. Because we are speaking here according to Rabbi Meir, and according to Rabbi Meir for goring, whether innocuous or forewarned, superior guarding is required, right? And here the Torah reduced the requirement of guarding them. What happens according to Rabbi Yehuda? According to Rabbi Yehuda, for an innocuous ox you need superior guarding; for a forewarned ox, lesser guarding. Because Rabbi Yehuda interprets the “and did not cover it” of a pit exactly the same way regarding the “and did not guard it” of a forewarned ox. And “but this one was guarded,” yes? Lesser guarding means it is considered guarded. “And did not guard it” means he did not guard it at all. Which implies that according to Rabbi Yehuda, lesser guarding also exempts. Therefore according to Rabbi Yehuda, all these derivations were not needed at all. According to Rabbi Yehuda, if for a forewarned ox the Torah reduced its guarding requirement, then for all the forewarned categories it will be the same.
[Speaker D] But according to Meiri, that doesn’t apply. What? But according to Meiri, that doesn’t apply, because here the animal enters the damaged party’s courtyard and eats fruit there, so what contributory fault does the damaged party have here?
[Rabbi Michael Abraham] No, I didn’t understand.
[Speaker D] According to Meiri, Rabbi Yehuda says a forewarned ox needs only lesser guarding—why? Because I also rely on the fact that there’s a public reputation, and the damaged party basically also has to be careful and protect himself. With eating and trampling that doesn’t apply, since this is in the damaged party’s courtyard and they’re eating…
[Rabbi Michael Abraham] No, still, still—you still have to make sure animals don’t enter your courtyard.
[Speaker D] His own courtyard?
[Rabbi Michael Abraham] Yes, close it properly. There’s no choice. With eating and trampling you have to say that, because after all your obligation applies only in the damaged party’s courtyard.
[Speaker D] No, I have to say it from the side of the damager, but not say that the damaged party has contributory fault—unless we say like Meiri. That’s what lesser guarding…
[Rabbi Michael Abraham] I’m talking about Meiri. So then why is lesser guarding enough?
[Speaker D] So that’s the Torah’s novelty—that even Rabbi Yehuda admits that the Torah reduced the guarding requirement for them. Really, according to the conclusion it’s a novelty even within Rabbi Yehuda.
[Rabbi Michael Abraham] Ah, you’re saying that according to Meiri this derivation was needed even for Rabbi Yehuda, because with eating and trampling you don’t have Meiri’s reasoning, whereas with goring you do.
[Speaker D] In the Talmud’s initial assumption, I don’t know, but let’s say Meiri was speaking according to the conclusion.
[Rabbi Michael Abraham] So according to that, with goring too in the damaged party’s courtyard you would need it, because goring is also liable in the damaged party’s courtyard. It sharpens what I said earlier—that I think this Meiri is only an explanation of the verse. But he starts from the verse “and did not guard it.” He understands that the liability is liability for negligence in guarding. That is the difference between an innocuous ox and a forewarned ox. Otherwise, as you’re saying now, it really is very difficult. What about goring in the damaged party’s courtyard? Will you say he should have closed the courtyard better? I don’t know. In any case, there are medieval authorities (Rishonim) here who say that according to Rabbi Yehuda all these derivations are unnecessary. By the way, everyone agrees, as far as I saw, that Rabbi Yehuda also agrees that the Torah reduced the guarding requirement for all these things. More than that—not only does Rabbi Yehuda agree, he doesn’t need a source for it at all. Here, according to Rabbi Meir, where for a forewarned ox superior guarding is required, for these cases where the Torah reduced the guarding requirement, you need a verse. And then Rava says: “Our Mishnah too is exact in this, for it teaches sheep.” Since we are dealing with an ox, it should have said “ox.” Why does it say “sheep” here and not “ox”? After all, all the previous mishnayot dealt with an ox. Rather, it is to teach me that this is eating and trampling, and the Torah reduced their guarding requirement, so that locking before them properly is enough. And then it turns out that our Mishnah can also go according to Rabbi Meir. Even though in practical Jewish law the Talmud itself leaves it this way—in practice we rule like Rabbi Yehuda—so there is no obligation to set up this Mishnah also according to Rabbi Meir. But still, it also works according to Rabbi Meir, and for our purposes in terms of practical Jewish law, the level of guarding that the Torah requires in all forewarned categories is a low level. Now I’m speaking according to Rabbi Yehuda, because that is the practical Jewish law. The Torah requires a low level of guarding in all forewarned categories, and from here on that is basically what we will also assume in the continuation of these passages—that is, the required level of guarding is the level of “guarded it properly,” yes, lesser guarding. Okay, now maybe a few more sentences here. Do you remember the proof of Kehillot Yaakov? Kehillot Yaakov’s proof was that he brought one of the proofs that liability to pay is not because of negligence in guarding. He says: with eating and trampling, after all—wait a second—it’s permitted for you, yes? It’s permitted for you to walk with an animal in the public domain, right? Therefore for eating and trampling in the public domain you are exempt—that’s what the Rif, the Rosh, and Maimonides write. Why are you exempt for eating and trampling in the public domain? Because you are allowed to walk with it in the public domain; that is what it is meant for. Kehillot Yaakov asks: then why for goring are you liable? After all, you are allowed to walk with it in the public domain. Rather, you see that even when there is no prohibition, there is liability—what I called today liability of responsibility, and not negligence in guarding. He says that this also shows there need not be a prohibition for liability to pay, because in the public domain there certainly is no prohibition. So I rejected his words and said that this is not necessary, because with an innocuous ox it could be that indeed with an innocuous ox I am allowed to walk in the public domain, and correspondingly I am indeed exempt; half-damages are a fine, not compensation. And with a forewarned ox, who says you’re allowed to walk in the public domain? According to Rabbi Eliezer you even have to slaughter it, and you remember that Tosafot said that in practical Jewish law we follow Rabbi Eliezer regarding the prohibition—that with prohibitions one really must slaughter the ox—so how can you say that with a forewarned ox it is permitted to walk with it in the public domain? Therefore that is not a proof. In light of what I said today, this can be rejected in another way as well—maybe that’s a continuation of the same point. Because with an innocuous ox, at least with an innocuous ox, the liability is liability that results from responsibility, not from negligence in guarding. So therefore, in a liability of responsibility, clearly we are not talking here about the other damaging categories in which the liability is because of negligence in guarding. There you can begin discussing whether there is a prohibition or no prohibition, whether there is an obligation to guard or no obligation to guard. But liability for innocuous goring in the public domain is simply liability of responsibility. It doesn’t prove anything about the other liabilities, which do not stem from prohibition or from a duty to guard, because this is liability of responsibility, liability of a different character. Okay, there are later authorities (Acharonim) who ask: why don’t we obligate for eating and trampling in the public domain under the rule of “its beginning in negligence and its end in an accident”? After all, when he walks with the ox in the public domain, basically he is negligent with respect to goring. So now it caused damage by eating and trampling—fine—but since its beginning was in negligence with respect to goring, make him liable for the end result of eating and trampling under the rule of “its beginning in negligence and its end in an accident.” According to what I’m saying, this of course never gets started, because he is allowed to walk with the ox in the public domain. The liability for goring is liability of responsibility; it is not negligence, so you cannot say that there was a “beginning in negligence” here. A beginning in liability of responsibility and an end in an accident—there is no such thing. Responsibility applies to what actually happened. If you are talking to me as a negligent party, then “beginning in negligence and end in an accident” is also considered negligence. But here there was no beginning in negligence; it began in an accident and ended in an accident. It’s just that for the first accident I have liability of responsibility. What does that have to do with the second accident?
[Speaker C] So according to this it comes out that with a forewarned ox, an ox that has gored three times, where there is a prohibition to walk with it in the public domain, right? Presumably it is forbidden to walk with it in the public domain—so it comes out that if it caused damage by eating and trampling, he would also be liable even in the public domain. That’s what comes out according to this.
[Rabbi Michael Abraham] Apparently you’re right. I don’t remember a source that says that, but apparently you’re right. I claimed earlier that with a forewarned ox you have to slaughter it; that’s what Tosafot said. You are obligated to slaughter it. And even before I saw Tosafot I claimed that it is forbidden to walk with it in the public domain. So it’s not such a stretch to say that, yes indeed, now that you walked with it in the public domain, even if it caused damage by eating and trampling, since you walked with it and it was forewarned—it was already designated as a forewarned ox with respect to goring—then you would also be liable for eating and trampling. This will depend somewhat on the wording, because in the Rif and Maimonides and the Rosh there are slightly different formulations. Some exempt eating and trampling in the public domain because the damaged party should have been careful; he should not have left it in the public domain. And then one could perhaps say that here too the damaged party still should have been careful, and I’m exempt. There is room for that. But then the question is of course invalid from the outset—meaning, why are you obligating me under “its beginning in negligence and its end in an accident”? The exemption is because he was not careful—what does that have to do with me? I was negligent but he was not careful. So the later authorities (Acharonim) who ask this question probably assume otherwise. Okay, good, we’ll stop here. Does anyone want to comment or ask?
[Speaker C] Next time what are we talking about? About exemption in human law but liability in the law of Heaven?
[Rabbi Michael Abraham] Yes. “There are four things such that one who does them is exempt in human law but liable in the law of Heaven”—that’s the next passage. I’ll remind you again regarding the study sessions: anyone who has individual study sessions needs to do it on the Beit Midrash website on Zoom. Okay, they just asked me to remind people about that for anyone who wasn’t aware. Okay, goodbye.