Receiver Chapter – Lesson 5

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

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[Rabbi Michael Abraham] A problematic result. Let me repeat it once again—I understand—a problematic result can exist independently of any person. It is a problematic result. The moment that problematic result is not attributed to any person, it’s hard to talk about a prohibition. Who violated the prohibition? Okay.

[Speaker B] But conceptually—not because we don’t know who did it—let’s say it could be connected to me. But what does “forbidden” mean? “Forbidden” means forbidden to do. A prohibition is always on an action. That’s a necessary condition. That’s not true.

[Rabbi Michael Abraham] Ah, a necessary condition is

[Speaker B] something else. Again, we’re going back.

[Rabbi Michael Abraham] That still doesn’t mean the prohibition is on the action. The prohibition is on the result, but the action links the problematic result to me, and that’s how there becomes a prohibition. It doesn’t matter.

[Speaker B] A prohibition without an action—that’s not, it’s an oxymoron. Conceptually, you just can’t talk about it.

[Rabbi Michael Abraham] But I said—I wasn’t talking about a prohibition. I’m talking about problematicness, not about a prohibition.

[Speaker B] Problematicness, yes. Fine. But I’m saying, if we’re speaking on the level of prohibitions, then you can’t attribute the unwanted result if, for example, nobody did it.

[Rabbi Michael Abraham] Right, everything is clear, I understand. But that’s why I began at the start and said: I agree, but there’s still a difference between defining the problem as a problem of result and defining the problem as a problem of action. When does the problem become a prohibition? That is usually attributed to a person. You can’t have prohibitions detached from human beings, that’s true. But there is still room to ask: what is the problematicness that the Torah sees in the situation?

[Speaker B] Certainly, ברור. Fine, but you can’t present it as though the problem here is that there’s nobody to attribute it to. The problem is that there was no action, and therefore prohibitions don’t apply here.

[Rabbi Michael Abraham] There’s no prohibition because there’s no one to attribute it to—not because there’s no one to attribute it to, let’s say

[Speaker B] that somehow you managed to attribute it to me. But I didn’t do it.

[Rabbi Michael Abraham] I don’t care. If it were attributed to you, you would be violating a prohibition. Which prohibition?

[Speaker B] In what way did I commit the prohibition?

[Rabbi Michael Abraham] It simply happened that way. You didn’t do it—the prohibition is on the result. The main thing is that it is attributed to you. How did this situation come about?

[Speaker B] I don’t understand what one can even say here.

[Rabbi Michael Abraham] Again, this is the argument we’ve been having. That’s not correct. For example, I spoke about the resting of one’s animal on the Sabbath. The resting of one’s animal—one violates a prohibition when one’s animal is plowing in the field, even though I’m not there.

[Speaker B] So there, the prohibition is either that you didn’t prevent it or that you caused it. It can’t be without that.

[Rabbi Michael Abraham] Not true. Not true. Not true. The problematic result is itself the prohibition. That is exactly the point.

[Speaker B] Now I—it can ground a prohibition, it can’t itself be a prohibition. How can you prohibit me because it is plowing?

[Rabbi Michael Abraham] What can I do about that? No, I don’t agree. I don’t agree. This was in previous classes—I don’t agree. I violate a prohibition at the very point itself; my obligation to prevent it is there to neutralize the prohibition, not that the failure to prevent is the prohibition. That’s not correct.

[Speaker B] In my opinion, that is the prohibition. You can’t speak of a prohibition in the fact that the state of affairs is like this. If I couldn’t have prevented it, would I still have violated the prohibition?

[Rabbi Michael Abraham] There you go—I was coerced. Yes, the prohibition was violated; it’s just that you were under coercion.

[Speaker B] Maybe that needs proof, I don’t know. To me that sounds like a far-reaching claim. No, conceptually—because violating a prohibition is ultimately…

[Rabbi Michael Abraham] Conceptually there’s no problem with that at all. I don’t see what the problem is. There is a prohibition here, except that I was coerced. What, you don’t recognize the existence of the category of prohibition under coercion? There is prohibition under coercion in Jewish law; that’s not a novelty.

[Speaker B] A prohibition under coercion means that in the end I did the forbidden act, only I… and then what?

[Rabbi Michael Abraham] So what if I didn’t do the act? I was compelled to do it.

[Speaker B] That doesn’t matter.

[Rabbi Michael Abraham] You didn’t do the act. That’s a conceptually harder problem than the one you’re talking about.

[Speaker B] No, that’s a different problem. You could say that every person is compelled in a certain sense to do what he does. No, I’m not saying that. What? Like someone under coercion? Yes.

[Rabbi Michael Abraham] In a certain sense. No, a person chooses to do what he does. Fine, but that’s…

[Speaker B] Someone under coercion also chooses. They put a gun to him and pointed it at him, so in the end he chose, because he knew that, so…

[Rabbi Michael Abraham] Not always. There are cases of coercion where you don’t choose.

[Speaker B] If someone moves my hand, that’s not coercion, I’m exempt, it’s not related…

[Rabbi Michael Abraham] That’s not simple either. Fine, we’re getting into a lot of things. That’s Maimonides on medical treatment and cases of coercion, yes. Anyway, for our purposes, the point is that this distinction—that indirect causation exempts in action-prohibitions but not in result-prohibitions—is not necessary. It could be that indirect causation exempts even in result-prohibitions because the result is not attributed to me. When I did it indirectly, it is not attributed to me. Yes, that’s true, and it is still true that there is definitely room to distinguish. It is not a necessary distinction, but there is room to distinguish. Because in a case where the prohibition is a prohibition of action, then if I did it indirectly, the forbidden action is not there. The burden of proof is on the one who claims I committed a prohibition. If the prohibition is a prohibition of result, and all I want is to be exempt because this result is not attributed to me, then apparently the burden of proof is really on me. Show that it is not attributed to you. It may be enough to connect the result to you even by a weaker connection, like a connection of indirect causation. If that is not itself the prohibition but only a means of connecting the result to you, then it could be that an indirectly caused act will also suffice. Because in the end one must remember that, at least according to many views, an act of indirect causation is a fully intentional act. And when I act indirectly, it is an intentional act. I intended the result, and that is exactly what I did. For example: winnowing, with the wind assisting him. Okay, winnowing and the wind assists him—that’s the Talmudic text on page 60 later on, we’ll get to it too. Winnowing and the wind assists him: I throw the grain into the air, and the wind blows away the chaff, and then the kernels fall down clean, without chaff. Okay. Now here I did the act indirectly—that’s how Rashi defines it—and I did the act indirectly, and nevertheless I would be liable for this act according to Rashi. Okay. So what does that actually mean? It basically means: I intended exactly what happened. After all, in the end I threw it up so that the wind would blow away the chaff and the kernels would fall. So I didn’t do the action—the wind did the action—but I intended everything; it was all planned, to do it in such a way that the wind would do what it does, and then what I wanted to happen would happen. So that means the act is a completely intentional act. There is no deficiency at all in my intention here. All there is is only indirect performance, okay? There is definitely room for the reasoning that even indirect performance, so long as it is intentional and that is what I wanted to achieve, is an act sufficient to connect the forbidden result to me. Because after all, what difference does it make whether I perform an act directly or perform an act indirectly? Bottom line, I did it. The result necessarily emerges from my action. I intended that this result should occur. So what difference does it make whether it was indirect or not? The problematic result is attributed to me—I violated a prohibition. But if you want to tell me that the act of winnowing itself is the forbidden act, then there one could say: look, if you do it with the help of the wind, maybe that isn’t an act of winnowing at all; maybe that isn’t the act that was prohibited. Then there would be an exemption. Okay? So there is definitely room here—I’m returning again to the same point I discussed earlier with Binyamin. I think the distinction between action-prohibitions and result-prohibitions is not nearly as broad as people usually present it, but it’s also not true that it has shrunk to zero, right? As one of my good friends once said when someone got engaged—someone saw a certain young man who very much wanted to get married, and he said to him: look, marriage isn’t as good as the yeshiva students think, but it’s also not as bad as the kollel men say. So in this context too, the distinctions between action-prohibitions and result-prohibitions are not as sharp as people present them, and not as broad as people usually present them, but it is not true that they have shrunk to zero. There is still some difference here, and indirect action can definitely fall along that difference, and it can also not—but it is certainly possible that someone will tell me: an indirect act is enough to connect the problematic result to me, but it is not enough to count as a forbidden act. Okay. So that is regarding the distinction itself between action-prohibitions and result-prohibitions. I’ll perhaps bring—you know what—I’ll perhaps bring as an example the famous dispute we have later in the chapter. We’ll return to it later in the chapter on page 60. This is not our topic, but I’ll deal with them together because it is really the same issue. There too there is a discussion of indirect causation. The Talmudic text there—one second, I’m sharing the Talmudic text here. The Talmudic text on page 60a: “If the wind fanned it, they are all exempt.” Here it is. “The Rabbis taught: If he fanned it and the wind fanned it, if his fanning was sufficient to fan it, he is liable; and if not, he is exempt.” And why? “Let it be like one who winnows and the wind assists him.” Yes, here we are speaking about the laws of damages, of course—this is Bava Kamma. So if you cause damage with the help of the wind, then you are exempt. Yes, if your fanning without the wind was not enough to fan it, and only the wind completed the matter, then you are exempt. The Talmudic text asks: why? After all, with regard to one who winnows and the wind assists him, in the laws of the Sabbath he is liable, even though there too the winnowing is done with the help of the wind. Abaye said: what are we dealing with here? For example, where he fanned from one side and the wind fanned from the other side. And there are three answers in the Talmudic text. Rabbi Zeira—ultimately I get to Rav Ashi, which is what matters for our purposes. Rav Ashi said: when we say “one who winnows and the wind assists him,” that applies only with regard to the Sabbath, because the Torah prohibited thoughtful labor; but here it is mere indirect causation, and indirect causation in damages is exempt. Yes, so he is really making the distinction not by technical case-setups of exactly how you winnowed or how you fanned or by differences in the scenarios, but the difference is between the laws of damages and the laws of the Sabbath. In the laws of the Sabbath, indirect causation is liable because the Torah prohibited thoughtful labor, but here in damages, indirect causation in damages is exempt. So on that Rashi says: “thoughtful labor”—his intention was fulfilled, since he is pleased that the wind assists him. What does that mean? It means that thoughtful labor—the definition of Sabbath labors—is “thoughtful labor,” and that is taken from the Tabernacle because it is an expression said regarding the labors of the Tabernacle. And what does “thoughtful labor” mean? It is labor that realizes my thought. So Rashi says, if that is the definition of Sabbath prohibitions, then it turns out that with respect to Sabbath prohibitions, the rule of thoughtful labor is usually a leniency. Meaning, with Sabbath labors, even in situations where in other contexts one would be liable, on the Sabbath, since thoughtful labor is required, one would be exempt. A labor not needed for its own sake, an unintended act, and things of that type. But here, “thoughtful labor” is a reason to be stringent, not lenient. Why? Because in indirect causation, all in all, his intention was fulfilled. I threw the kernels into the wind, and the wind blew away the chaff, and the kernels fell back down. Exactly what I planned in advance happened. And since that is so, this is thoughtful labor even if I did not do it directly but only indirectly—I used the wind. But that was my plan. If my plan was realized, then I violated a prohibition in the laws of the Sabbath. In damages there is no requirement of thoughtful labor. Therefore in damages, even if his intention was fulfilled, it doesn’t matter, because in the end you did not perform the forbidden action; you did it with the help of the wind. You did not do it—the wind did it. And since that is so, indirect causation in damages is exempt. So in Rashi it seems that there really is a difference between Sabbath and damages. And that difference stems from the fact that in indirect causation there is, all in all, full intention, certainty that the result will occur, and my thought was fulfilled. It is exactly what I planned to happen, so what difference does it make that I did it this way? Bottom line, I did it with the help of the wind, and exactly what I planned was realized. And by the way, one can connect this to the act of the Holy One, blessed be He, in the days of creation. After all, the Sabbath is a remembrance of the resting of the Holy One, blessed be He. There too, the Holy One, blessed be He, did not do it with hands. He did it by the word of His mouth, but His intention was fulfilled. That is what it means to do acts in the six days of labor—that His intention was fulfilled. On the Sabbath He rested from that. That too is what is imposed upon us: to rest from acts in which there is fulfillment, realization, yes, of our thoughts, of our plans. So that is the difference between Sabbath and damages. But that is Rashi. However, as is well known, later authorities (Acharonim) already pointed out that the Rosh here on the spot—where is it? Here it is. Yes, in section 11: “The Rabbis taught: If one whitened it and the wind fanned it, if there is enough in his fanning to fan it, he is liable, and if not enough in the wind to fan it,” etc. And then the Talmudic text asks: “Why do we not say that even though the wind assisted him in making the fire, it is as though he did it alone, just as with one who winnows and the wind assists him, for we regard him as though he did the labor alone? For there, the Torah prohibited thoughtful labor, even though it is only mere indirect causation; in this way the Torah made him liable, since this labor is fundamentally performed by means of the wind. But here it is mere indirect causation, and indirect causation in damages is exempt.” So “the essence of the labor is by means of the wind”—what does that mean, that the essence of this labor is by means of the wind? So the later authorities explain that his intention is apparently not like Rashi. He wants to say that in winnowing, this is a kind of labor whose normal mode of performance is by means of the wind. Therefore there, even though you are acting indirectly, you are liable. Because in winnowing, that is not considered doing the labor in some different way. That’s how it is done—it is done with the wind. I have no other way to separate the kernels from the chaff, and therefore there one is liable. So you see that he does not understand that indirect causation on the Sabbath in general is liable. According to his view, indirect causation on the Sabbath too is exempt, just as in damages. The reason they are liable here is specifically regarding labors like winnowing, because in winnowing the normal way is to do it with the help of the wind. But if you did something that has another way to do it, and you did it with the help of the wind, that is called indirect causation and you would be exempt. In contrast to Rashi, who claims that whenever your thought was fulfilled, then in essence you violated the prohibition on the Sabbath. Therefore it does not matter whether this labor is a labor whose normal way is to be done by means of wind, or whether you happened to do it by means of wind. In the end, if your intention was fulfilled, then you are liable. Yes, so indirect causation in damages is liable. So this is really the difference between the two. It could be that it is a difference in the definition of the prohibition. Rashi says that essentially the prohibition is the fulfillment of the thought. That means, in the end, the prohibition is almost a result-prohibition. There has to be a plan of mine that is ultimately realized. Yes, it’s not only the result itself. There has to be a plan of mine that is ultimately realized. The realization itself is the prohibition, of course, provided that it is the realization of a plan. Okay, that is the definition according to Rashi. And therefore Rashi says: what do I care if it is indirect causation? In the end the result occurred, it happened according to your plan—that means the plan was realized. I do not care that you did it this way by means of wind; that changes nothing. The Rosh argues: no, even if your plan was realized, you would be exempt, because indirect causation on the Sabbath is exempt. Specifically regarding winnowing—because in winnowing that is how it is usually done, one simply does it with the help of the wind—that is the normal way to do the labor of winnowing. So when the Torah, or the Sages, learned that the Torah counts winnowing as one of the thirty-nine primary categories of labor, they are essentially telling us: winnowing is a prohibited labor. What is the labor of winnowing? To throw it into the wind and have the wind separate it. So I did not do anything here indirectly, because here the prohibition is on that itself, not on the result. Because when you say there is indirect causation here, what you are really saying is that what was prohibited is the result, and I caused it indirectly, therefore it is indirect causation. But here he says no: the causing itself is the prohibition. So how can you say that this is a prohibition committed indirectly? The prohibition is a prohibition to cause. That is what the prohibition is. Therefore there is no place here for the exemption of indirect causation. You see? This is exactly the distinction I was talking about earlier. Of course, the Rosh says this only about winnowing. In labors where the normal way they are done is not with the wind, and you did it with the wind, there the Rosh will say you are exempt even though your intention was fulfilled. Why? Because there the prohibition really is a prohibition on the action, not on the causing. Therefore, once you caused it, that is indirect causation, and indirect causation is exempt. Here the causing itself is the labor. The labor of winnowing is defined as a labor that causes a result. That is the definition of the labor—not that you are liable for indirect causation. It is like with cooking, where they say: in cooking, after all, what do I do? I just take the pot and put it on the flame. The fire cooks. What did I do? That is the prohibition of cooking. The prohibition of cooking is to put the pot on the flame so that in the end it will be cooked. I don’t cook. But would anyone say here that I violated this prohibition indirectly? That I cooked indirectly? After all, all I did was put it on the fire; the fire cooked. Of course not. That is what is called cooking. Cooking means causing the fire to cook. That is called cooking. That is the labor of cooking itself; it is not indirect causation. Or planting, yes—I put the seeds in the ground. So I am only indirectly causing them to grow later, right? But the labor of planting is not to cause growth; the labor of planting is to place them in the ground. Of course, it gets its meaning from the fact that it causes growth—sorry. Okay. We’ll stop here for a few minutes, three or four minutes, and come back. All right? Splash some water on your face, get yourselves a cup of coffee or something, refresh yourselves.

[Speaker D] Okay. We’re back. All right, let’s begin. Even though part of the group still isn’t with us. Whoever is here, please just turn on your cameras, okay?

[Rabbi Michael Abraham] Okay, so that was—yes, it went on a bit too long—but it was basically a kind of framing introduction within which the discussion takes place. Now I want to shed a bit of light on the relationship between the prohibition and the monetary aspect, and I mentioned this earlier regarding Rabbi Yehoshua’s statement that there are four things such that one who does them is exempt under human law but liable under the law of Heaven. On the face of it, the standard explanation is that basically there is no obligation to pay, but there is a prohibition. And we talked about the fact that in torts generally there is both a prohibition and an obligation to pay, so in indirect causation of damage you have only the prohibition; there is no obligation to pay. Meiri writes about this that there is also—well, not “also”—there is an obligation to pay, but the obligation to pay is under the law of Heaven. And then the practical difference is that such a person is considered a robber, and if he didn’t pay then he is disqualified from testimony and all kinds of things of that sort. Okay, we’ll see the Meiri later on. In any case, it’s clear that even according to the Meiri there is a prohibition here, and as a result of that there is also an obligation to pay under the law of Heaven. He’s not coming to deny the prohibition; he only said that it’s not just a prohibition but also a duty to pay. “Exempt under human law and liable under the law of Heaven” means liable to pay, not by human hands but under the law of Heaven. In any event, so what is the relationship between the prohibition and the monetary aspect in the context of indirect causation? We saw this in the context of torts generally; now the question is what happens specifically with indirect causation.

So there is a Talmudic passage in Bava Batra 22—I’m sharing the file again here. The Gemara says—yes, there is a Mishnah there: “One must distance a ladder from a dovecote by four cubits, so that the marten will not jump, and a wall from a gutter by four cubits, so that he can set up a ladder.” Now the details don’t matter right now; the point is that I have to distance my things so that they won’t cause damage to my fellow. “Shall we say that our Mishnah is not in accordance with Rabbi Yosei?” So it seems not to be in accordance with Rabbi Yosei—sorry, the Mishnah is not according to Rabbi Yosei. Why? Because if it were Rabbi Yosei, didn’t he say: “This one digs within his own property and that one plants within his own property”? Everyone can do what he wants within his own property, and if that causes a problem for the other person, that’s his problem. The Gemara says: you can even say it is Rabbi Yosei. Rav Ashi said: when I was in the study hall of Rav Kahana, he used to say: Rabbi Yosei concedes in the case of his own arrows. Meaning, in a place where it is really like the damager’s own arrows, there the damager himself has to be careful, and it’s not only the victim’s problem. “Here too, sometimes while he is placing it, the marten is sitting in the hole and jumps.” So therefore this is a case of “his own arrows,” and here too Rabbi Yosei agrees that the person has to move the ladder away from the dovecote so that the marten will not jump onto the other person’s dovecote.

The Gemara asks: “And what about indirect causation?” Rav Tovi bar Matna said: “That is to say, indirect causation in torts is prohibited.” How does that connect to what’s written here? Here it is quite clear that we’re talking about a prohibition, not an obligation to pay. The discussion here is not whether you have to pay; the discussion is whether you are obligated to distance the source of damage. So Rabbi Yosei concedes in the case of “his own arrows” that if it’s damage that is really like my arrow, then I have a duty to distance my damaging source, and I can’t say: I’m only causing indirectly, I can do whatever I want, and if things happen to you that’s your problem. Seemingly, the discussion really is about the prohibition and not about the payment obligation.

Now there are views there, by the way, that if you didn’t distance it and it happened, then you also have to pay. Among the medieval authorities (Rishonim) there is discussion of that. But the Gemara’s discussion is a discussion of whether you have to distance it. And here again this takes us back to what I said when I spoke about the general introduction to liability in torts: that even in the prohibitory context one must distinguish between a Choshen Mishpat prohibition and a Yoreh De’ah prohibition. A Yoreh De’ah prohibition means that if you did something, it is forbidden; the Holy One, blessed be He, will reckon with you. A Choshen Mishpat prohibition gives some kind of right to the injured party, or to a potential injured party. It requires you to distance the ladder, and if he goes to a religious court, the religious court will force you to distance the ladder. In that sense this is a dispute about property rights. The question is: what right do you have to place the ladder, and what right do I have to demand of you not to place the ladder? The discussion is one that takes place in a religious court. We don’t go to a halakhic decisor who explains to us whether this is permitted or forbidden, as in dietary and ritual prohibitions. That means this is Choshen Mishpat. But it is Choshen Mishpat that does not deal with the question of whether the one who moved the ladder close has to pay, but rather whether he is allowed to move the ladder close. And therefore this sharpens exactly the category I mentioned in the introduction—the introduction to the chapter—that there is such a thing as Choshen Mishpat prohibitions.

In the context of ordinary torts this is basically the duty to guard. Does the potential injured party have the right to demand that I guard? For example, if that guarding costs me money—I have to lock the stable, put the cattle shed there, put some proper lock there—that costs money. Now I’m not willing to do it. Now suppose we’re dealing with damage such that if it occurs, let’s say for purposes of discussion, I’d be exempt; there is no payment obligation. But if the potential victim has a right to demand that I guard, then he can take me to a religious court and obligate me to spend money in order to buy a lock. In that sense this is a monetary discussion; it is a discussion of legal rights, not merely of prohibitions in the abstract. Therefore, when it says here “indirect causation in torts is prohibited,” it’s not only prohibited in the sense that the Holy One, blessed be He, will reckon with you if you didn’t act properly. It has legal implications: someone can take you to a religious court and obligate you to move the ladder away. Even though it may be that afterward, if the damage happened and the marten jumped—if you didn’t do it and the damage happened and the marten jumped—you may be exempt, because it’s indirect causation. Indirect causation in torts is exempt under human law. Okay, but there is still a prohibition. Okay?

Rashi there writes: “Indirect causation in torts is exempt, and even according to the one who says that we do not judge the law of garmi and he is exempt from paying, it is prohibited to cause damage; and when he comes to establish an indirect cause in order to damage—sorry—his fellow can prevent him.” Yes, the other person can stop you from damaging him even if you argue that there is no obligation. Here he ties it to the law of garmi, which we’ll get to later. So what comes out is that in the law of indirect causation—and garmi has already slipped in through the back door—in the law of indirect causation there is a prohibition, but there is no obligation to pay under human law. According to the Meiri there is also an obligation to pay under the law of Heaven, apart from the prohibition. But basically the discussion is a discussion about prohibition. Yet what I just said, in light of what we have now seen, is that this is a prohibition that has dimensions of Choshen Mishpat, not only of Yoreh De’ah.

If you send a fire through the hand of a deaf-mute, an incompetent person, or a minor, and I have a field, okay, which can potentially be damaged, I can go to a religious court and demand that you take that fire away from the deaf-mute, incompetent person, or minor. Even though if the deaf-mute, incompetent person, and minor—if you didn’t do it, and the deaf-mute, incompetent person, and minor caused a fire—you may be exempt from payment. Not “may be”: one who sends a fire through the hand of a deaf-mute, incompetent person, or minor is exempt under human law. But I still have rights, and they are legal rights, not merely a prohibition. I can demand that you distance the damage, meaning not cause me the damage, and that you guard your property so that it won’t damage me.

Now let’s see a Gemara in Bava Batra 26, which is what Tosafot here brings—Tosafot on page 60, not here. The Gemara in Bava Batra says as follows: “The house of bar Maryon son of Ravin, when they used to beat flax, bits of chaff would go and damage people.” Yes, the particles would fly and harm people. “They came before Ravina. He said to them: when we say that Rabbi Yosei concedes in the case of his own arrows, that applies when it goes by his force. Here, it is the wind that brings it.” Meaning: when does Rabbi Yosei concede? When it went by his force. In other words, I threw something or by my force caused something to happen. But if there is another force involved here, then even Rabbi Yosei does not call it “his own arrows.” And here the wind took these flax particles and caused the damage, not me. It didn’t come by my force; it came by the force of the wind.

Maybe again an analogy to this matter from the laws of the Sabbath, because in the prohibitory dimension of torts there is room to compare it to the laws of the Sabbath. In the laws of the Sabbath, for example, there is the rule of carrying four cubits in the public domain. Carrying four cubits in the public domain is a subcategory of transferring. What happens if I throw something four cubits in the public domain? Then throwing is also liable. Throwing is liable on account of carrying. What happens if I did this and the wind took it? I didn’t throw it—when I throw, it flies by my force, so “his force is like his body,” and it is as though I myself carried the object four cubits. Here there is no explicit rule on this matter, but the Shulchan Arukh brings a law from the Jerusalem Talmud—the Rema brings a law from the Jerusalem Talmud—that one who spits is exempt—sorry, one who spits is liable. One who spits on the Sabbath is liable. So everybody says he is liable because of throwing. There are variant texts there: liable because of throwing, liable because of winnowing. It is not exactly clear what the text in the Jerusalem Talmud is, but everyone struggles with this because it is neither winnowing nor throwing. It is not winnowing because the essence of the labor of winnowing is separating food from waste—that is winnowing, that is selecting, that is sifting. These are three labors that separate food from waste or waste from food. Here I merely spat, yes? I didn’t separate anything from anything. What does this have to do with winnowing? But on the other hand it is also not throwing. Why is it not throwing? Because it flew by the force of the wind, not by me. If I spit it directly, then of course that’s ordinary throwing. But “one who spits” means that the wind took it. So why is this called throwing?

Rav Menashe of Ilya—brought by the Mishnah Berurah; Rav Menashe of Ilya was a student of the Vilna Gaon—argues that this is learned from winnowing and throwing together. Basically, the labor is throwing, but here the wind took it and not my own force. That is learned from winnowing, because in winnowing we see that the involvement of the wind does not exempt. The involvement of the wind—if your intention was realized on the Sabbath, as we saw in Rashi, or even in the Rosh regarding the labor of winnowing—then if your intention was realized, in the end you are liable. From that we also learn regarding throwing: that if you threw it and the wind carried it four cubits in the public domain—not your own force—you are still considered to have thrown it. Okay? Meaning there is a difference between a situation where you throw the object and a situation where you place it in the air and the wind carries it. For the Sabbath, that is the same thing. But for torts, that’s what we saw in our Gemara on page 60: there is a difference. Right, if he fanned it and the wind fanned it into flame, he is exempt, because this thing did not go out by my force but by the force of the wind. In the laws of the Sabbath he would be liable because his intention was realized, either in the labor of winnowing or in general—that was the Rashi and the Rosh that we saw.

Now in the case of the flying particles, from the Gemara we just read, this is a situation where we are causing damage, but the damage is not done by human force, rather by means of the wind. And as we saw in torts, such a thing is exempt. Right? Because here it’s not a matter of realization of intention; that is not the definition of the prohibition—realization of intention. Let’s see the Gemara there: “Mar bar Rav Ashi objected to this.” It’s also interesting, the identity of the one objecting. Remember that the one who made the distinction between torts and the Sabbath was Rav Ashi in our Gemara on page 60. So his son—“Mar bar Rav Ashi objected: how is this different from winnowing, where the wind assists him?” Yes, it’s fascinating: he didn’t learn his father’s teaching. His father explained that there is a difference between torts and the Sabbath. What does this have to do with winnowing where the wind assists him? On the Sabbath, because his intention was realized. Here, even if his intention was realized, it is indirect causation, and indirect causation in torts is exempt. “They said it before Mari bar Mar, and he said to them: this is indeed the same as winnowing where the wind assists him.” It really is the same thing. Okay? What does “it really is the same thing” mean? He disagrees with the house of bar Maryon—or really disagrees with Ravina—and claims that yes, one should be liable. It is like winnowing where the wind assists him. So basically—what did Ravina himself, who exempted, think? He probably thought like Rav Ashi in our sugya. Therefore he says: what does this have to do with winnowing where the wind assists him? That applies on the Sabbath, and if his intention was realized he is liable. Here I am dealing with torts; in torts, indirect causation is exempt. But neither Mar bar Rav Ashi nor Mari bar Mar accepts this. For them, there is no difference between torts and the Sabbath.

So Tosafot here—Tosafot is in Bava Kamma 60—already comments on this point and says as follows. “Rav Ashi said: when we say winnowing and the wind assists him, that applies only regarding the Sabbath, for the Torah prohibited thoughtful labor, and when he causes the wind to assist in winnowing, that is considered thoughtful labor, and therefore he is liable for this caused winnowing. But performing the act of winnowing by itself is not called that. Therefore here he is not called one who kindles, but one who causes, and the Torah made liable only one who kindles and not one who causes kindling by means of a wind that assists him. And therefore this is considered indirect causation regarding fire, like all other cases of indirect causation, for we hold that indirect causation in torts is exempt.” Up to here this is the explanation of Rav Ashi in our Gemara on page 60.

“And Mar bar Rav Ashi, who objected regarding the flying particles in ‘Lo Yachpor’”—that is, from the Gemara we just saw—“how is this different from winnowing where the wind assists him—what, does he not hold like Rav Ashi?” Right, what we saw above: that Mar bar Rav Ashi and Mari bar Mar go against Rav Ashi. Ravina follows Rav Ashi’s view, which distinguishes between the Sabbath and torts. But Mar bar Rav Ashi, who objects, and Mari bar Mar, who confirms that objection—or disagrees with Ravina on the strength of that objection—both say there is no difference between winnowing where the wind assists him and torts. Now, does Rav Ashi’s son not know that his father already made a categorical distinction between torts and the Sabbath? Tosafot says that is not reasonable. Apparently Mar bar Rav Ashi must also go according to Rav Ashi’s approach. So what then? “Here—what does he hold? Like Rav Ashi here. There, regarding the obligation to distance the damage, it is considered ‘his own arrows’ and one must distance it. And even according to Rabbi Yosei, like distancing a ladder from a dovecote, it is considered ‘his own arrows’ regarding the duty to distance. Even though there it is considered only indirect causation, which is exempt from payment, nevertheless it is prohibited and one must distance it.”

Then he goes on about a spark that comes out from under a hammer, which is considered damaging because he wants it to go and strikes with such force that after his force is spent it goes on to damage in an ordinary wind, and so on—that’s another whole topic, maybe we’ll discuss it later. But what is he basically saying? There is no contradiction between Mar bar Rav Ashi and Rav Ashi. The discussion in the Gemara in Bava Batra regarding the flying particles is about distancing sources of damage. And what Mar bar Rav Ashi basically wants to say—“this is indeed like winnowing where the wind assists him,” just like on the Sabbath. What does that mean, “just like on the Sabbath”? The prohibitory dimension of the matter in torts is like the Sabbath. And if on the Sabbath you are liable because your intention was realized—or even in indirect causation you are liable—then that means this is indirect causation, and even in torts you are obligated to distance indirect causation because there is a prohibition. True, if it happened you do not have to pay, but the duty to distance the damage you still have. Therefore Tosafot says there is no contradiction between Mar bar Rav Ashi and Rav Ashi. If we read that Gemara as though it is dealing with payment liability, then it contradicts Rav Ashi’s words in our sugya. Rav Ashi in our sugya says that you are exempt from payment. Tosafot says: you read it incorrectly. The Gemara there deals with the duty to distance, not with payment. And the duty to distance exists even in indirect causation. And Rav Ashi also agrees with that.

Everything Rav Ashi says—that there is a difference between indirect causation in torts and indirect causation on the Sabbath—is only regarding the duty to pay: that the duty to pay in torts does not exist if it is indirect causation. But as for the prohibition, torts and indirect causation are like the Sabbath. And that is not a simple claim at all. Because think about what Rav Ashi’s reasoning was on page 60 when he said that on the Sabbath there is a prohibition: “the Torah prohibited thoughtful labor,” right? Because his intention was realized. Well, that sounds like a specifically Sabbath-oriented statement. The whole idea in the prohibited labors of the Sabbath is that there is a special definition not connected to other halakhic contexts. Namely, that if his intention is realized, that itself is what has been done. Tosafot says: no. This is a definition for every prohibition, not only for the Sabbath. “The Torah prohibited thoughtful labor” means basically, in other words, what he should have said is that the discussion on the Sabbath concerns the prohibition. That is what Rav Ashi is really saying. And with regard to the prohibition, if his intention was realized, he transgressed a prohibition. Regarding the duty to pay, indirect causation in torts is exempt. But there will also be a prohibition in torts. Even though in torts there is no category of thoughtful labor. Because if his intention was realized and it is indirect causation, then it will be prohibited in torts too. Only the payment obligation will not exist. This is not the plain sense of the Gemara; it is not the simple reading of our Gemara, but that is basically what emerges from Tosafot’s claim.

Moving on. So that’s what I said regarding the difference between distancing the damage, the prohibition, and the payment obligation. And I said that once again there are really four levels of discussion here. One level of discussion is the question whether there is a prohibition in general—if someone did it, the Holy One, blessed be He, will reckon with him. So the answer is that in indirect causation there is a prohibition; indirect causation in torts is prohibited. A second level of discussion: is there a right to demand that you distance the damage—again, a legal right, or a Choshen Mishpat prohibition as I called it earlier? The answer is apparently yes, there is such a right. At least in the case of “his own arrows,” even Rabbi Yosei concedes: the potential victim has the right to demand from the potential damager that he distance his damaging sources. Okay? The third layer concerns the obligation to pay. And here again, according to the Meiri there is even an obligation to pay in cases of indirect causation in torts, but under the law of Heaven, not in religious court. Others do not make that distinction. And then there is the obligation to pay in religious court. And that—and only that—is what the Gemara is talking about when it says “exempt under human law.” “Exempt under human law” means he does not have to pay for the damage that occurred, but the other three dimensions do exist. There is a prohibition, there is a Choshen Mishpat right of the victim to ask you—to demand of you—to distance the damage, and according to the Meiri there is even a duty to pay under the law of Heaven. But a duty to pay under human law—no, that is what does not exist. Okay, so that’s up to this point.

Now, as I already mentioned, there is a distinction that the Gemara makes between indirect causation and garmi. Yes, in garmi in torts, in a number of places the Gemara says that one is obligated to pay. Take an example from Bava Kamma 100: “Reish Lakish showed a dinar to Rabbi Elazar”—that is, he showed a coin to Rabbi Elazar as an expert in coins. “He said: it is excellent.” Yes, it’s a fine coin, because it had to be shown to a money changer to determine whether the coin was counterfeit, whether the coin was valid and everything was in order—valid, everything in order—so he says to him: yes, this is an excellent coin. Rabbi Elazar answers Reish Lakish: “See, see, I am relying on you.” Know that I am relying on you. If in the end it turns out that this coin is not excellent and you thereby cause me damage, the responsibility will be yours. Rabbi Elazar answers Reish Lakish: “If I relied on you, what does that mean? That if it turns out to be bad, I will have to exchange it for you? You think I’ll bear responsibility? But you yourself said—after all, you yourself, Reish Lakish, said: it is Rabbi Meir who judges the law of garmi. Did you not mean Rabbi Meir, and we do not hold like him?” Did you not mean to say that Rabbi Meir judges the law of garmi, but we do not rule in accordance with him—that only Rabbi Meir judges it, but we do not? Reish Lakish answers him: no, Rabbi Meir—and we do hold like him. When I say that Rabbi Meir judges the law of garmi, I do not mean that this is Rabbi Meir’s opinion but we do not rule like him in practice. Rather, Rabbi Meir taught us that we do judge the law of garmi, and in garmi—as distinct from indirect causation—one is obligated to pay. That is what Reish Lakish says.

One should remember that Rabbi Meir is indeed one of those figures whose rulings are often not followed, so there is that background to the intuition that if Rabbi Meir judges the law of garmi, maybe that comes specifically to say that the law is not like that. But Reish Lakish says: no, that is the law. Indeed, the Shulchan Arukh writes as practical halakhah in a very unusual formulation: “We hold like Rabbi Meir, who judges the law of garmi.” It is very rare in the Shulchan Arukh—I do not remember another case like this—that it says “We hold like” a tanna, and it mentions a tanna from the Mishnah and says “We hold like Rabbi Meir, who judges the law of garmi.” Yes, and specifically regarding a human being, but regarding an animal everyone agrees he is exempt—that is another topic. Therefore, one who pushes his fellow’s coin until it falls into the sea is liable, even though he did not lift it. Yes, he only pushed the coin; he did not lift the coin. Likewise, one who diminishes his fellow’s coin and removes its stamp—I didn’t do anything to the coin except erase the image stamped on it—is liable, even though he did not decrease its substance; I didn’t take anything away from you, here, your coin is before you. And one who sells a debt document to his fellow—and people aren’t familiar with this—the one who sells a debt document to his fellow and then goes back and waives it, since we hold that it is waived—yes, everybody knows this strange law: I have a promissory note for a loan, let’s say I lent Reuven money and he gave me a note. I sell this note to Shimon, okay? I tell him: you collect the debt from Reuven; give me the money. He gives me the money, and now I go to Reuven and waive the debt. The note is already in Shimon’s possession—waived. The note is waived. “One who sells a debt document to his fellow and then goes back and waives it—it is waived.” Never mind right now why; that is the law. The Shulchan Arukh says: since we hold that it is waived, he must pay the buyer, as explained in section 66. I still have to pay the person who bought the note from me, because I caused him damage. Okay? And this is what is called garmi—the law of garmi. Yes, and Rabbi Meir teaches us that we judge the law of garmi. In such a case I am liable to pay. True, the debt is waived and Reuven does not have to pay, but I have to pay Shimon for the loss I caused him.

Now what exactly is the difference between garmi and indirect causation? Here the halakhic authorities disagree. There, in section 386 of the Shulchan Arukh that I cited, there is a lengthy discussion in the Shakh, in the Sema, in Ketzot HaChoshen, and others. One view says that there is really no fundamental difference between indirect causation and garmi. Garmi is simply those cases of indirect causation that are common. In ordinary indirect causation, you won’t find some mechanical difference in the mechanism of causation. And usually we are accustomed to thinking that the difference between indirect causation and garmi is that garmi is some more active, more direct cause, and therefore one is liable for it. This view says: no, there is no fundamental difference between the cases called garmi and the cases called indirect causation. Rather, there are cases of indirect causation that are very common, and the Sages were concerned that people would cause damage indirectly because they know they are always exempt, so they enacted a rabbinic ordinance—a rabbinic penalty—that in those cases, even though this is indirect causation, one is liable. That category is called garmi. Then indeed it comes out that this is a rabbinic penalty. In principle, under the strict law you would not be liable; the Sages penalized him. And according to this, indeed, the Shakh there in section 386 writes that according to this, nowadays we do not judge the law of garmi. Why? Because nowadays we do not judge cases of fines; we do not have ordained religious courts, and so the law of garmi, which is a rabbinic penalty, is not judged nowadays. That is the first view.

A second view says that there is no difference between garmi and indirect causation; rather, this is simply a dispute over whether indirect causation is liable or exempt. “Rabbi Meir judges the law of garmi” means Rabbi Meir obligates payment in indirect causation. In other words, Rabbi Meir disagrees with our Gemara, which says that indirect causation is exempt under human law—not so; indirect causation is liable under human law; indirect causation in torts is liable. And he calls it garmi in order to say that in fact in torts indirect causation is liable—it’s not like indirect causation in the rest of the Torah, in prohibitions, where you are exempt because it is indirect causation. In torts, let’s call it garmi, since in torts one is liable for indirect causation. Then it comes out that all the sugyot that speak about indirect causation in torts being exempt are not according to Rabbi Meir. Now the question is: so what do we do with that? Basically it means: according to whom do we rule in practice? The simple reading in the Gemara is that in practice too we rule like Rabbi Meir, so it turns out that all those sugyot are not only not according to Rabbi Meir, but also not practical halakhah, because we rule like Rabbi Meir. But there are those who want to argue this. It is a relatively rare view, but there is Nachmanides on Bava Batra 22, and there is the Shakh in section 386 in Rashi’s view, and others—Maimonides in some places too—about whom people want to make this claim. That is the second view.

The more common approaches among the medieval authorities are approaches that make a distinction between indirect causation and garmi in the mechanism of causation. Therefore they say: ordinary indirect causation really is exempt, but there is a special kind of causation in which somehow it is more direct or more your responsibility, and there one is indeed liable. It is simply a category, a subcategory of indirect causation, called garmi, which is more direct. This is a whole basketful of medieval and later authorities (Acharonim). Each of the medieval and later authorities explains differently the difference between indirect causation and garmi. But I put them all into the third category, which is the more common category, which says that the law of garmi is liability under the strict law. It is not a rabbinic penalty, and it is not simply saying that all indirect causation is liable—ordinary indirect causation is exempt. There are cases of causation that are called garmi in which under the strict law you are liable—for example, if you intended to damage, if the damage is direct and immediate; it doesn’t matter. Each of the medieval and later authorities has his own definitions for this subcategory called garmi. But the claim is that there is such a subcategory. That is the third type.

Now the parameters that determine this, on which the medieval and later authorities rely when they distinguish between indirect causation and garmi, are the following. I’ll summarize briefly. First: the immediacy of the damage—does the damage happen immediately? For example, with those flying particles that I send into the air, and then afterward the wind takes them and they damage later, the damage is not immediate. By contrast, if I erase a coin, the damage is immediate. That is the first parameter. Second parameter: was the action done to the body of the damaged object itself? Or did I perform an action elsewhere—say, I sent the fire and the wind took the fire there—so I did not touch the damaged object; I did not perform the action on the damaged object. Is the damage certain? That is a third parameter—what is called definite damage. If the damage is certain, then that too is a relevant parameter. Was the damage done directly by hand? Or was it done with the help of the wind? Is the damage perceptible? For example, erasing a coin—perhaps that is considered imperceptible. Was it done without the assistance of something or someone else? And was there intent to damage or not, and so on. All these parameters—there may even be others, but this is what I collected more or less at a stroke—all these parameters are used by medieval and later authorities in order to say what the difference is between indirect causation and garmi.

There are medieval authorities who say, for example, that if the damage is immediate and you intended it, that is garmi, and for that one is liable. All the other cases are indirect causation, and for them you are exempt under human law and liable under the law of Heaven. Others say: if it is done to the body of the damaged object and you intended it—there are, say, seven parameters here, so of course there are two to the seventh power possibilities for defining garmi, right? Any subset of these parameters can define a set of parameters that defines what garmi is. If one, three, and four are present; or one, six, and seven; or two, three, and seven; or whatever—choose any subset of these parameters. Okay.

Now, to go through all the medieval and later authorities here is simply complete insanity. It’s complete insanity, because the number of views is more or less two to the seventh, maybe even more. But what is important is to understand the principle, and the principle is that there are three fundamental directions for distinguishing between indirect causation and garmi. Next time I’ll try to go into the Rosh and Tosafot just to see two views out of the two-to-the-seventh—two specific views—how they fit with the cases and use the seven parameters I defined here in order to distinguish between indirect causation and garmi. And with that I’ll more or less finish the general discussion of indirect causation and garmi, and then we’ll go into our sugya. Okay, any comments or questions if there are any? Fine, so that’s it. See you.

[Speaker B] Thank you very much.