The Receiver Chapter – Lesson 6

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

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[Rabbi Michael Abraham] No, that’s exactly what I want to argue. And I was wondering whether, through these examples, what we really need to reach here are halakhic definitions of immediate damage, not factual definitions of immediate damage. And you can see this in all the medieval authorities (Rishonim) and later authorities (Acharonim) who discuss this here—that the criteria are very far from unequivocal. I’ll show this in the Rosh in a moment, and then it’ll be more detailed. So afterward he says, Tosafot raises a difficulty, later on there: “And there is a difficulty with all of this: you declared the impure to be pure, and the owner himself mixed them together with his produce.” Right? So impure produce got mixed into his produce. Someone declared the produce pure for him, he was sure it was pure, he mixed it into his produce, and now it’s impure, and now he can’t eat any of it. So why is he liable? For he himself is not damaging his fellow’s property, and even at the very moment when he declares it pure, no damage occurs—the damage comes only afterward. So that’s difficult for Rabbi Yitzhak’s answer. Here this is also invisible damage, so it’s an even more complicated question. Then Tosafot brings a third possibility. Again, I’m not going to resolve all the passages; this is just to get a taste so we can understand the lines of thought that come up here among the medieval and later authorities. “And the Ritzba seems to hold”—this is the third possibility raised in Tosafot. The first two possibilities were Rabbi Yitzhak’s. “That liability for indirect but direct-causing damage is on account of a rabbinic penalty. As is proven in the Jerusalem Talmud. Therefore, for any damage that is common and regularly likely to occur, the Sages imposed a penalty. And the reason they imposed a penalty was so that not everyone would go around damaging his fellow openly. And this is the reason for the one who holds liable even for invisible damage. And it is possible that Rabbi Meir also imposed the penalty for unintentional acts, just as he imposed a penalty in cases of making impure and mixing terumah into ordinary produce, whether unintentional or intentional.” Fine, the details are less important, but this is the first view I mentioned, the first type I mentioned, which says that liability for indirect but direct-causing damage does not necessarily have unique characteristics as opposed to mere indirect causation; rather, it is a penalty that the Sages imposed in places where they feared people would exploit the exemption of indirect causation. The Rosh, parallel to this Talmudic passage, also says something similar. He says: “But this is mere indirect causation,” Rav Pappa and Rav Huna said—that is, indirect causation in damages is forbidden, even though one who damages through indirect causation is exempt, nevertheless from the outset one may prevent him from causing damage. That itself is already interesting. He gives more detail beyond what Tosafot writes, and he also distinguishes between the prohibition and the obligation to pay in indirect causation. But notice: the prohibition he is speaking about means that from the outset I can prevent him from causing the damage. This is not a prohibition in the sense that the Holy One, blessed be He, will reckon with me in the World to Come, but rather a prohibition in the realm of monetary law. He says, as distinct from the duty to pay—where after damage has occurred I must pay—what he calls a prohibition means you are forbidden to create a situation from which damage will emerge. “Forbidden” means that the potential victim has the right to demand that you prevent the damage, to fence the breach, for example, between a vineyard and a field, and so on. So that is the meaning of “forbidden,” and it sharpens the point I talked about in previous classes, that “forbidden” in this context can be interpreted as a dietary-law type prohibition or a heavenly prohibition, but it can also turn out to be a monetary-law prohibition, distinct from the duty to pay. “Forbidden” means you are not allowed to leave such a situation in place; any potential victim has the right to demand that you fix the situation and not leave it as it is. “However, we hold that liability for indirect but direct-causing damage applies, in accordance with Rabbi Meir, who holds liable in the case of one who spreads his vine over his fellow’s grain, and when the wall breaks he says to him: fence it up; and one who judged a case and acquitted the liable party”—all the cases in Tosafot—“for Rabbi Meir holds liable even when he did not physically take and give by hand.” “And one must distinguish between all these cases in which they impose liability, and a matter called indirect causation in damages, where one is exempt, such as the case in ‘How the Foot Causes Damage’: one threw a vessel from the top of a roof, and there were cushions and pillows below”—yes, all the examples Tosafot brings. “All these that are listed first are a penalty,” what we called here—and we’ll see it in our own passage as well. Then he says as follows: “And one can distinguish that whenever he himself causes the damage to his fellow’s property and the damage is certain”—notice, two parameters. He is already using two parameters, not one, the way Rabbi Yitzhak used two theories each composed of one parameter. But the Rosh says no: two conditions are needed for something to count as this kind of direct-causing indirect damage. First, you yourself must do the damage, and not your property—yes, not something else acting on your behalf—and second, the damage must be certain, that it be an inevitable result. This also appears in Nachmanides’ treatise on liability for indirect but direct-causing damage, where he elaborates on these matters, and one of the views he brings is this idea: if the damage is certain, it counts as this category. “Then it is called liability for indirect but direct-causing damage, and one is liable. One who burns a document or waives a debt—he himself damages his fellow’s property; one who burns a document or waives a debt—he himself damages his fellow’s property.” And what about certainty of damage? In the case of waiving a debt, the certainty of damage is obvious. And in the case of burning the document, maybe Benjamin’s suggestion from earlier could help here: the value of the debt drops from one hundred to eighty, and that really happens immediately. Meaning, it happens immediately and necessarily. Even though, as I said before, the borrower could still be an honest man and repay the entire debt even without evidence against him, and then the question is whether that still counts as certain damage. It could be that we say: okay, he was an honest man, but you caused the damage. It may be that the twenty out of the hundred that he pays the lender would be returned to you, because in the end it turned out there was no damage, or that you somehow acquired it in some way. But still, damage perhaps really did occur at this moment, even though the explanation the Rosh gives here is only about the first parameter—that he himself damages—and he does not explain here why the second parameter, certainty of damage, is satisfied. “And likewise in the case of one who shows a coin to a money-changer, because by telling him that it is good, he exempts the one who gave it to him.” Here he explains to us why. Why is this an explanation? Of immediacy, or of the fact that he himself did it? Clearly of immediacy, right? Here he actually explains the second parameter, not the first. What is he basically saying? I go to the money-changer and he says, look, this coin is excellent. Okay, and it turns out not to be. The coin—I received money, yes? I sold someone a chair and he gave me a one-hundred-shekel bill. I go with that one-hundred-shekel bill to a bank clerk, to a money-changer—check this for me to make sure it isn’t counterfeit, okay? He checked and said no problem, the bill is completely fine, perfectly kosher. Fine. In the end I go buy something with it in the market and they find that it’s counterfeit; they won’t accept the bill from me. So when did the damage occur? Only when I got to the market, when I wasn’t able to use the bill to buy something, right? So apparently the damage is not immediate. The Rosh says: no, it is immediate damage. Why? Because the moment I went to the bank clerk who told me the bill was valid, by that he exempted the buyer from bringing me another proper hundred-shekel bill. He gave the hundred shekels he owed me and went home. That happened immediately. Therefore the Rosh here quite clearly explains the second parameter, immediacy, and not the first parameter, that he himself did it and not something else. “And likewise in the case of informing against someone, the damage is certain, since once he points out a Jew’s property to a violent gentile, it is clear that the gentile will take it… and there is no greater act than this.” Right, the violent gentile asks me where so-and-so’s property is, and I say: here, it’s over there. Well, it’s obvious he’ll take it, so this is certain damage. But what about the fact that I myself am doing damage to my fellow’s property with my own hands—does that hold here? It’s not a simple question, because the one actually doing the damage is the violent gentile, not me. I’m only showing him where the property is. Why is this not just indirect causation? Why is this considered an action where I myself caused the damage? Fine, you explained the certainty of damage—that’s obvious because it will definitely happen. But now I ask: what about the first parameter, that he himself caused the damage? Well, somehow the feeling is that once you placed it before the eyes of the violent gentile, it is already as if burned. Meaning, it was destroyed immediately. Okay, your pointing to that property is considered damage done by hand. That is very novel. It is certainly possible that some rabbinic enactment is involved here. Meaning, some rabbinic enactment to treat an informer as though he damaged directly by hand. Maybe. Fine, I don’t know.

[Speaker C] In any case, I still didn’t understand. Why apparently is it simple? Because here the damaging act is the showing, and that he does by hand. True, the damage is not direct, otherwise it wouldn’t be indirect causation.

[Rabbi Michael Abraham] By that same logic you could say the damaging act is lighting the fire. The fact that the wind then carries it, that’s obvious, that—

[Speaker C] No, why? If the fire were burning in my house, nothing would happen. You need the wind in order for it to become damaging.

[Rabbi Michael Abraham] Here you need the gentile.

[Speaker C] You need him, yes, but—but when did the damage happen? When did the act occur that we regard—

[Rabbi Michael Abraham] —as the act by which he caused the damage?

[Speaker C] With fire, it’s when your object catches fire. Here too, with the gentile, it’s when it goes to the gentile. Not when the gentile took it. Why? Because when the gentile took it, that’s not considered my act.

[Rabbi Michael Abraham] When did he lose it? When did the owner of the property lose his property? It’s obvious that this is rooted in my act, but in practice, when does the loss happen to him? When they take it from him.

[Speaker C] I—I agree that the loss happens afterward, but the damaging act—right, the gentile’s act is also a damaging act, right, but both of them are.

[Rabbi Michael Abraham] So what, then by that definition everything is a damaging act, every—

[Speaker C] Everything is a damaging act by hand and not—why? The example of fire is good. I light it here, and the fact that it can very well reach there—something is still missing.

[Rabbi Michael Abraham] Not “can very well”; with a normal wind, a normal wind carries it—it definitely gets there.

[Speaker C] Fine, it definitely gets there, and when it gets there the damage will happen, but the damage will happen then.

[Rabbi Michael Abraham] Right, so here too, the damage will happen when the gentile takes it. What? I don’t see the difference.

[Speaker C] Yes, no—the damage won’t happen then, rather the act will happen then. Fine, I understand there’s a problem here, right.

[Rabbi Michael Abraham] By the way, regarding fire there’s the Nimukei Yosef—you know exactly when I’m considered to have ignited the Sabbath candles.

[Speaker C] There’s some kind of fine resolution there, yes.

[Rabbi Michael Abraham] Fine. In any case, let’s get back. Again, I’m not going to get into it; I’m only trying to let us get a little taste of these things because they’ll accompany us a bit later on, so I just want us to become familiar with this conceptual world. I’m not going to resolve every single case. Just notice that even if we use these criteria, supposedly sharp criteria, they always require some further explanations, halakhic reasoning; it’s not a simple factual characterization and that’s it. Okay? “And likewise, in the case where he despaired of repairing it and did not fence it, since his property is mixed with his fellow’s property and forbids it, and he despaired of fencing it, the damage is certain and it counts as an act.” And this too counts as his act, not only as certain damage. How is it his act? This is the father of non-actions. He didn’t fence it, and then his property—his vineyard—sort of spills into the wheat field, the grain field. That’s called his act? Why is it his act? On the contrary, this is classic damaging property. The definitions here are very, very problematic. If you look at it like an ordinary person, you can understand this way of speaking. When you see something like this you immediately say, listen, you didn’t fence that fence, that’s direct damage by hand—don’t confuse me. But when you try to define it—when you really look at it in terms of factual characteristics—it’s very hard to offer definitions, to conceptualize the definitions, to offer well-formulated definitions. Very difficult. “And likewise, one who judged a case and required the innocent party to pay, or exempted the guilty party, or fed non-kosher meat to the dogs by his instruction, is considered like one who performs an act.” He himself already understands that it’s not exactly performing an act, but rather is like one who performs an act. I only told him that his chicken was non-kosher, so he gave it to the dog to eat, but it turned out the chicken was not non-kosher—I made a mistake. So did I do direct damage by hand? Why by hand? Fine, I don’t know. In any case, you could say that the value of the chicken drops the moment it becomes considered non-kosher. So ostensibly that damage I did cause. Again, that’s not by hand; it’s my legal ruling. I’m trying to show you that the realistic, factual, physical characteristics aren’t enough here. There is some interpretive issue here about how one views things. “But all these are mere indirect causation. For in the case of one who sets a dog or snake upon someone, the damage is not quite so certain as in the case of informing, and perhaps the dog or snake will not bite.” Fine—would you have said that on your own? You tell the gentile, there is so-and-so’s property, take it. It is certain the gentile will take it. But with a dog and a snake, you’re setting them on him, yes? Not just anything. A dog and a snake, you are setting them on him—who knows? Maybe in the end the dog or snake will decide to just sun itself there. Who says it’ll do it at all? You can say that, I’m saying—it’s not absurd. But it’s pretty clear that we say this only after we already need to make the distinction. I don’t think we would have made this distinction based on pure intuition alone. Okay. “And in that case of one who threw the vessel from the roof, when he threw it he did not do an act fit to damage, for there were cushions and pillows beneath it; and when one removed them he also did not perform an act on the body of the property, even though the damage was certain.” So it is not on the body of the property, even though the damage is certain. Where did “the body of the property” suddenly come from? That wasn’t one of the parameters he mentioned above. He said that he himself does the damage to his fellow’s property and that the damage is certain. Here he already adds that the damage must be to the object itself. Okay? So this means that “he himself does the damage” means not only excluding a case where my property causes the damage, but also if I myself do the damaging act, yet not to the object itself but to something else—that isn’t included. That isn’t stated above. And if you get to the Shakh and the Sma and all the commentators there on the Shulchan Arukh, who elaborate on this at great length—there are soccer fields’ worth of distinctions there by the Shakh and the Sma—you’ll see that they make various further distinctions there beyond the parameters the medieval authorities bring, because otherwise you really can’t explain all these cases according to the principle. Look, here for example he says: “And this is not like the case of informing, where pointing to the body of the property is like burning it.” Once you pointed to the property, it is now burned. But not when you set the snake or the dog on it—then the property is not like burned. Fine, where exactly does that distinction come from? Let’s say I can certainly imagine cases where I show a gentile and the chance that he’ll take it is lower than when I set a dog on someone. There are clearly such cases. So what would the law be then? Then indeed we would have to rule differently. If it’s the kind of gentile who isn’t sure to take it, but just makes himself a target bank, like they do in military targeting. He builds a target bank for himself, and the question of what he’ll eventually steal or not steal, or what he’ll take or not take, he’ll decide later, and so on. “And one may further distinguish,” I’m reading the last paragraph just so we can finish with this, “that whenever the damage is done immediately at the time of the act, it is called liability for indirect but direct-causing damage.” Right, above he spoke about certainty of damage and that it is done by the person himself; here he speaks about the immediacy of the damage. This is already a different answer. “Like one who burns a document and one who waives a debt”—again, one who burns a document, yes? He calls that immediate damage. “And likewise one who shows a coin to a money-changer, for immediately he exempts the one who gave it to him, and in the case of informing, at the moment he points it out it is as if burned. And likewise one who despaired, immediately at the moment of despair the mixture becomes kilayim, except that it does not become forbidden until he adds one two-hundredth.” Right, so the mixed forbidden planting comes into existence immediately when he did not fence it, but of course the prohibition only takes effect when he adds one two-hundredth. So it becomes kilayim at the first moment even though it is not yet forbidden. “And likewise with judgment and legal ruling, the damage comes immediately. But one who removes the cushions—at the time of removing them, the vessel has still not broken until it reaches the ground,” which can happen a tenth of a second later, maybe, yes? “And likewise in the case of setting on” and so forth. In short, the story is complicated. I assume this is enough to get the impression that these distinctions are distinctions—first of all, we have to decide what the distinctions are, what are the parameters we adopt in order to distinguish between indirect causation and indirect but direct-causing damage. And after that we need to decide what combination—what combination of the parameters. And after that we need to decide whether each of the parameters in fact exists in the given case or not. This is not a purely factual question. Yes? When you point out property to one who informs to an extortionist, then the property is as if burned. It is considered burned from the moment you pointed to it. That is not a factual intuition. It’s not that you can see that it happened immediately when I pointed; rather, we view this situation as though the property were burned. By the way, my feeling is that this is a rabbinic enactment. There are medieval authorities from whom that seems to emerge. It is not really the definition of the actual situation. That’s why I mentioned earlier the point that an informer can be killed. There are very far-reaching rabbinic enactments against informers. And I think that just as one is allowed to kill them even though he is pursuing money—where did we ever say one is allowed to kill someone pursuing money?—so too here, when I say that the property is considered as if burned the moment I showed it or pointed to it, that too may be only a rabbinic enactment and not really—

[Speaker D] Maybe one could suggest—yes—maybe one could suggest that when I set a dog on someone and in the end it doesn’t attack, then my setting it on him was not a setting-on that in the end caused anything. It does not always cause, so my action is not direct. But when the gentile doesn’t act, he simply chose not to act. As far as I’m concerned, I did the full action, and it may be that he will choose not to act.

[Rabbi Michael Abraham] It’s an interesting line of reasoning, because usually that reasoning is brought in the opposite direction. Meaning, if you hand something over to an agent with independent understanding—if there is an independently acting person between you and the result—that usually lessens your responsibility. And if between you and the result there is only a deaf-mute, an incompetent person, and a minor—we’ll see this in our passage—or an animal or something that lacks independent agency, then you are considered responsible, because you can’t place the responsibility on the intermediary cause, since it has no understanding.

[Speaker D] This isn’t about the question of responsibility; it’s about how much this is indirect causation. About how much my action caused it. So I caused the action; but there is here—

[Rabbi Michael Abraham] Someone with free choice who can stop my action from taking place.

[Speaker D] And if he—

[Rabbi Michael Abraham] —is not someone with free choice who can stop it, then what? If it’s a dog and it can’t stop? It can stop even without free choice; it simply decided not to be set on him. It doesn’t have to do it.

[Speaker D] Choice in that sense. So my setting-on is a sign that my setting-on is not an absolute action. If my setting-on were a one-hundred-percent setting-on, then the dog would certainly attack.

[Rabbi Michael Abraham] I hear your reasoning, but there’s also room to say the exact opposite. Meaning, my act is like an uncertain inevitable result. Meaning, if this thing ultimately happened, that shows that from the outset it was clear it would happen. Like dragging a bench and making a furrow, yes? So when are you exempt? You’re exempt when it wasn’t certain beforehand that the furrow would happen. But it did happen, because otherwise there would be no case to discuss, right? We are discussing a case where the furrow did happen. Rather, since beforehand it wasn’t certain the furrow would happen, therefore you are exempt. But if the furrow happened, then it was also clear from the outset that it would happen, because with a type of ground like this, it’s not as if the ground chose to become furrowed. The ground has no choice. Meaning, if it happened, that shows that it was the kind of ground where from the outset it was clear this would happen. Maybe you didn’t know that, but from the outset it was clear. So you’re saying the same thing here: if I set the dog on him and the dog bit, that means I gave it a perfectly good setting-on. If it didn’t bite, apparently something was lacking in my setting-on. Okay? And therefore my act is not an act of direct damage by hand. But if I show it to the gentile, then even if the gentile ultimately doesn’t take it, I did my act. Fine, and then what? Then in principle I’d be liable even if the gentile didn’t take it? It’s just that there’s nothing to be liable for, because the gentile didn’t take it. So there is that. But yes—like Rabbi Akiva Eiger says regarding a case that begins with negligence and ends in an unavoidable accident, where there is no connection between the negligence and the accident. There is the view of Abaye according to the Rif in Bava Metzia 36, that if it begins with negligence and ends in an unavoidable accident, one is liable even when there is no connection between the negligence and the accident. So Rabbi Akiva Eiger explains why: because you are basically liable for the negligence itself. It doesn’t matter at all what happened afterward; even if the animal is standing here, you are liable. It’s just that if the animal is here, you don’t need to pay—take it and that’s it. But in principle you become obligated by the negligence itself. You want to say the same thing here: if I showed that property to the gentile, then I basically performed a complete act and I already become liable. If the gentile afterward decides whether or not to take it, that is his decision, and obviously that doesn’t indicate that I didn’t perform a complete act here. Fine, interesting reasoning. It could be. Interesting reasoning, even though usually people say the opposite. Fine, let’s stop here for a three- or four-minute break. Go splash some water on your face, freshen up a bit, and then we’ll come back. After that we’ll move to the Talmud in tractate Shabbat in order to return to damages. We are on 23b, toward the bottom. “It was stated: Rav Huna said: If one has enough only either for a Hanukkah lamp or for the sanctification of the day, the Hanukkah lamp takes precedence because of publicizing the miracle. Rava said: The sanctification of the day takes precedence, because when a frequent and an infrequent obligation conflict, the frequent one takes precedence. After Rav Huna said this, Rava said: Now that Rav Huna has said the Hanukkah lamp takes precedence, if the choice is between sanctification of the day and a Hanukkah lamp, the Hanukkah lamp takes precedence. Rava said: It is obvious to me that if one must choose between the lamp of his house and the Hanukkah lamp, the lamp of his house takes precedence because of peace in his home. If one must choose between the lamp of his house and the sanctification of the day, the lamp of his house takes precedence because of peace in his home. They raised a question before them: What about a Hanukkah lamp and the sanctification of the day? Does the sanctification of the day take precedence because it is more frequent, or perhaps the Hanukkah lamp takes precedence because of publicizing the miracle? After he raised the question, he then resolved it: The Hanukkah lamp takes precedence because of publicizing the miracle.” So let’s see the hierarchy we have here. We have three things: the Sabbath lamp, the Hanukkah lamp, and wine for kiddush. The Talmud determines that the Sabbath lamp precedes them all. Why does the Sabbath lamp precede them all? Because of peace in his home. Both against the Hanukkah lamp, which involves publicizing the miracle, and against the sanctification of the day, which has the issue of—

[Speaker C] —“Remember.”

[Speaker B] And it is also more frequent. Peace in his home overrides everything. Now what happens between the Hanukkah lamp and the sanctification of the day? On that, the Talmud had its question, and the conclusion is that the Hanukkah lamp takes precedence because of publicizing the miracle. Even though kiddush is from the Torah—“Remember”—and it is more frequent, still the publicizing of the miracle of the Hanukkah lamp overrides it. That’s the hierarchy that emerges from the Talmud.

[Rabbi Michael Abraham] Okay, we’re back. So, basically that was some general background on indirect causation and indirect but direct-causing damage in tort law. I want to go back to the Sabbath, which we touched on a bit in the passage on page 60, because some interesting results came out there too, and that may also shed light on the difference between indirect causation and indirect but direct-causing damage. In these classes I also want, overall, to cover the passage on page 60. When we get there—if and when we get there—I’m not going to go back into this whole issue of indirect causation and indirect but direct-causing damage again, so I’m doing it already here. So, in the passage on page 60 we saw there—we already went through it, I won’t do it all again in detail—but we saw that the Talmud raises a contradiction between winnowing assisted by the wind and fanning a fire where the wind intensified it. Winnowing with the wind’s assistance is in the laws of Sabbath, where one is liable, whereas fanning and the wind intensifying it leaves one exempt. Four answers are brought there. Rav Ashi’s last answer is that on the Sabbath the Torah forbade only intentional, thoughtful labor. So Rashi says there: “Intentional, thoughtful labor”—his intention was fulfilled, and he is pleased with the wind assisting him. According to Rashi, it appears—and we saw all this—that according to Rashi there is a general principle in the laws of Sabbath that even indirect causation is liable. Why? Because if a person made some kind of plan and the plan was realized, that is basically what the Holy One, blessed be He, did in the act of creation. That is exactly what was forbidden to us. Therefore—therefore, therefore—the moment his intention is fulfilled, even if it happened by means of the wind, Rashi says he is liable. And from Rashi it appears that in every labor among the Sabbath labors and their subcategories, if you do it with the assistance of the wind you will be liable. That’s on one side. I don’t remember if I mentioned to you the Jerusalem Talmud about spitting—did I mention it? The Jerusalem Talmud about spitting also seems to imply the same thing, if one interprets it like Menasheh of Ilya on the Mishnah. So we use the case of winnowing to teach that the involvement of the wind does not exempt. And that is exactly Rashi’s idea: winnowing is the model case, teaching you that even if the wind is involved, that does not matter, because his intention was fulfilled, fulfilled, fulfilled. Still, I should note here that there is nonetheless some difference between the Jerusalem Talmud and Rashi, because in Rashi it sounds as though I do not learn this from the labor of winnowing. I learn it from the very definition of the Sabbath labors as intentional, thoughtful labor. And once his intention was fulfilled, it is intentional, thoughtful labor. I don’t need the labor of winnowing. Say I asked: how do I know that throwing with the help of the wind, like spitting, yes, that throwing with the help of the wind would be liable? According to Rashi, you don’t need to bring winnowing. You need to say: his intention was fulfilled, that is intentional labor, and therefore it is forbidden. The Jerusalem Talmud brings the labor of winnowing as the teaching model. From the Jerusalem Talmud it sounds as though the very definition of Sabbath labors as intentional labor is not enough. Meaning, I need the labor of winnowing to teach me this idea, from the fact that that is how they did it in the Tabernacle. Meaning that the Jerusalem Talmud apparently does not understand the definition of intentional labor the way Rashi does. But still, once there is the labor of winnowing, then it seems the Jerusalem Talmud goes in Rashi’s direction.

[Speaker D] So then does that define intentional labor? What? So it comes out that in the Tabernacle they also did labor by means of an additional factor, and then basically it’s not from the side of intentional labor but from the side of that’s what they did in the Tabernacle. Right.

[Rabbi Michael Abraham] Meaning, in the bottom line it comes out the same, but it is not learned from intentional labor, rather from winnowing. The point is that the Rosh—and here will be the difference—the Rosh claims that this is specific to the labor of winnowing. Meaning, it is not true that indirect causation on the Sabbath is liable. In the specific labor of winnowing, since that is the normal way of doing it, to use the wind, there the exemption does not apply if you do it by means of the wind. But if someone were to plow with the aid of the wind, he would be exempt. Okay? There is no general rule on the Sabbath that even indirect causation is liable. The Rosh does not learn it that way. The Rosh understands it as a special rule for the labor of winnowing. By the way, it is a bit difficult in the Talmud, because what does it have to do with “the Torah forbade intentional labor”? Say instead: because that is how the labor of winnowing is done. Fine, in any case that’s how the Rosh explains it. Now here there is room to discuss the Rosh in two ways. One could understand that the exemption of indirect causation according to the Rosh is based on atypical performance. Meaning, in principle it could be that labor done through indirect causation would be liable, and in that sense he would be like Rashi. It’s just that in labors where that is not the normal way to do them—by means of wind—there one would not be liable because that is an atypical performance. Not because of the regular exemption of indirect causation in all of Torah law, but rather a special exemption because you are doing it atypically, and labor performed atypically exempts. In winnowing, which in the Tabernacle was done that way, that is the normal way to do winnowing, there using the wind is not atypical. Therefore there is no exemption there. That is one possibility. A second possibility is to say no: since the normal way of winnowing is by means of the wind, then I ask myself how the matter was done in the Tabernacle. That is what determines what was forbidden and what was not forbidden. Now if the normal way is to do it with the wind, then apparently in the Tabernacle too, when they winnowed, they did it with the wind. Consequently, winnowing is forbidden even by means of the wind. Understood? The point is not an exemption of atypical performance. Although in the bottom line you can say it comes out the same, because what is atypical performance? Atypical performance means doing something not the way they did it in the Tabernacle. The question is whether that means not the way they did it in the Tabernacle or not the way people normally do it. That is a major question in the laws of atypical performance. But the basic definition is a different one. Meaning, the Rosh is not really speaking about an exemption of indirect causation or an exemption related to intentional labor. For him, the consideration that this is how it is normally done is only an indication that the winnowing in the Tabernacle was probably also done with the wind—otherwise how was it done? Consequently, winnowing by means of the wind is also liable, because that is how it was in the Tabernacle. The practical difference would be, for example, what happens in labors that can also be done without wind? Wind is not atypical—for example, winnowing. If there were another way to do winnowing, not by means of the wind, in some other way. Now, many people do it by means of wind; it is not an unusual way to do the labor of winnowing, but there are other ways too. According to the second way I explained before, there would be exemption even according to the Rosh. Why? Because who says that is how it was done in the Tabernacle or not? And the whole point is not whether it is atypical or not atypical, but what your indication is that the winnowing in the Tabernacle used wind. After all, if there is another regular way to do it, then even with wind it is not atypical—wind is a normal way—but since there is also another way, who says how it was done in the Tabernacle? It may be that in the Tabernacle they did it in the other way, not with the wind, and then you cannot learn from there to impose liability. But if you understand that according to the Rosh this is an exemption of atypical performance, then I don’t care that there is another normal way to do it; the question is whether this way is normal. It doesn’t need to—

[Speaker C] You can always claim maybe in the Tabernacle it was done differently.

[Rabbi Michael Abraham] What? I didn’t hear.

[Speaker C] I’m saying you can always claim maybe in the Tabernacle it was done differently.

[Rabbi Michael Abraham] I think that for a normal way, we don’t assume it was different.

[Speaker C] So basically, in principle, even if there is more than one normal way, we assume that all those ways were implemented in the Tabernacle.

[Rabbi Michael Abraham] No, not necessarily. Not necessarily.

[Speaker C] I think that at the moment there’s no way to know. Every labor has more than one normal way.

[Rabbi Michael Abraham] Then you wouldn’t need atypical performance at all; you’d just say anything that wasn’t—every such thing simply wasn’t in the Tabernacle, and that’s it.

[Speaker C] Fine, so look, you can say: who says they dyed green in the Tabernacle? We know about red and—

[Rabbi Michael Abraham] No, that is already the question of what counts as a substantive atypical change and what doesn’t. There is always room to dig further—

[Speaker C] Right, so for him it isn’t a substantive change whether you did it through the wind or not. It isn’t part of the definition of the labor.

[Rabbi Michael Abraham] Two normal ways are not a change in any sense. If there are two normal ways—

[Speaker C] There’s no—

[Rabbi Michael Abraham] —change here. The only question is whether it was in the Tabernacle.

[Speaker C] Right, so I’m saying the two depend on one another, because if these are all the normal ways—we assume that all the normal ways of performing the labor were in the Tabernacle, all the variations. No, I don’t agree. Because it’s the opposite: it can’t be known what was in the Tabernacle. The opposite—how do we know what was in the Tabernacle? The reverse. If there is one normal way—if there are several normal ways—

[Rabbi Michael Abraham] Then none of them could prohibit; you would have a doubt. You have no example?

[Speaker C] No, I don’t think so.

[Rabbi Michael Abraham] I think—

[Speaker C] —that every labor has more than one normal way of being done—

[Rabbi Michael Abraham] —and they were all in the Tabernacle, because there is—

[Speaker C] —no reason to assume one was and one wasn’t.

[Rabbi Michael Abraham] Where do you get that all of them were in the Tabernacle? Where do you get that from? There is a Rav Chaim in—

[Speaker C] No, because I’ll tell you where I get it from: because this is not a historical question of what happened in the Tabernacle or not, and whether they happened to do it that way. That’s not the point. The point is that we look at what ought to have been in the Tabernacle, and from that we learn.

[Rabbi Michael Abraham] I don’t see where you get that from—why on earth would we assume that?

[Speaker C] Because otherwise there is no way to decide the historical question of how they did it.

[Rabbi Michael Abraham] Of course there is a way. If there is one normal way to do it, then that is how it was done; and if there are two ways, then yes indeed it will be a doubt.

[Speaker C] Maybe they did it in an abnormal way?

[Rabbi Michael Abraham] No, why would they do it in an abnormal way? There’s no reasoning for that at all. Why would they do it in an abnormal way? If there is a regular way, then that is how they did it. Fine. There is a Rav Chaim—this reminds me—there is a Rav Chaim that the Birkat Shmuel brings, that Rav Baruch Ber brings at the beginning of Bava Kamma, where he discusses what happens if you have a doubt in the interpretation of the Torah. “And Zedekiah son of Chenaanah made for himself horns of iron”—I think this goes on the passage there about a detached horn, an attached horn. So he says that if there is a doubt in the interpretation of the Torah, its doubt is treated leniently, even though this is a Torah-level doubt. Why? Because if the Torah can be interpreted in two ways—or doubt—sorry, he says its doubt is treated stringently, I think. Treated stringently. Why? Because if it can be interpreted in two ways and the Torah intended only one of them, then it should have said so, because after all it should have considered that I, as the reader, could understand it in two ways. And if it wants to tell me that only form A is correct or only form B is correct, it should have guided me; otherwise it itself puts me in doubt. And if it did not guide me, then apparently both things are forbidden.

[Speaker C] On the contrary, that strengthens what I’m saying: that if there are two normal ways—

[Rabbi Michael Abraham] Ah, I see. Rav Chaim—at first I thought he was saying that it’s permitted, that a doubt in interpretation of the Torah is permitted, but then he says no, it is certainly forbidden. It’s not because of doubt; it is certainly forbidden, because the fact that the Torah did not formulate it—

[Speaker C] —means it intended both of them. Got it.

[Rabbi Michael Abraham] Yes, so okay. In any case, both of these possibilities exist conceptually, and the practical difference will be for kinds of labor where there is more than one normal way to do them. So if I have some indication of what they did in the Tabernacle, an independent indication, then that’s a different matter. But if not, then yes indeed, I’ll really have doubts here; I don’t know. According to this Rabbi Chaim, it could be that I would actually have to prohibit all of them, like Binyamin said. Could be, I don’t know. In any case, this is a dispute between Rashi and the Rosh, but for our purposes what comes out is that according to Rashi, indirect causation on the Sabbath is liable, because the Torah prohibited purposeful labor; and according to the Rosh, the exemption comes to exclude labors of the kind that are normally done through indirect causation. And again I’m saying, “normally done” can mean either that this is a normal way… or that this is the normal way. There are two ways to understand the Rosh.

Now, there is a famous dispute of this type among the later authorities, between the Magen Avraham and the Even HaOzer, as is well known, a very famous dispute, much ink has been spilled over it. There, in section 252, in the Shulchan Arukh in 252, he deals with the resting of utensils and with labors of “making noise,” meaning things that make noise. And then the Sages prohibit them rabbinically so that the Sabbath won’t be cheapened, or so people won’t suspect a person of doing labor on the Sabbath. Therefore one doesn’t do things that, even if you activated them before the day began, if they make noise on the Sabbath itself, the Sages prohibited doing them.

Now the Shulchan Arukh there deals with the question whether I’m allowed to put wheat into millstones driven by a stream of water—watermill stones, where the water, some kind of waterfall there, drives the millstones—whether I may put wheat into those millstones close to nightfall, meaning before the Sabbath, but shortly before, close to the Sabbath. So the Shulchan Arukh says: it is permitted to put wheat into a watermill close to nightfall. Now the Rema says: and we are not concerned about the noise, that people will say, “So-and-so’s mill is grinding on the Sabbath.” Why are we not concerned about the noise? I don’t know—either we don’t rule like “making noise,” or whatever—but that’s the first opinion. And there are those who prohibit it with millstones and everywhere there is concern about noise. And that is the accepted practice ab initio, says the Rema, and so people act ab initio; however, in a case of loss one may be lenient. But the ruling ab initio is that where there is “making noise,” when there is noise, even if you activated it permissibly before the day began and it then happens on its own afterward, the custom is to prohibit it—but again, fundamentally of course it is permitted; this is only a question of that rabbinic law of “making noise.”

Now the Magen Avraham there, subsection 20, writes as follows: “Because of the sound, and there is a degradation of the Sabbath. And if the mill belongs to a gentile, it is obvious that it is permitted to put things into it before the day begins,” because then the mill belongs to the gentile; no one will suspect that there is a Jew here doing labor on the Sabbath. “And if the Jew gives wheat to the gentile on the eve of the Sabbath, even if the gentile grinds it on the Sabbath, it is permitted.” Meaning even if he grinds it on the Sabbath, it is permitted, as we wrote in section 2, “provided the Jew does not stand near him, because then it looks as though he is his agent, as we wrote at the end of section 307. But if the time requires it, for example close to Passover, the Jew is permitted to watch the mill so that it not become leavened, and this is a double rabbinic prohibition.” “Double rabbinic prohibition” means telling a gentile to do something rabbinically prohibited. “Even if the Jew puts it into the mill on the Sabbath”—and this is the key sentence, pay attention—“even if the Jew puts it into the mill on the Sabbath, there is no liability for a sin-offering unless he grinds with a hand-mill.”

That’s really a parenthetical comment, but his claim is that with a watermill this is only a rabbinic prohibition, so telling a gentile counts as a double rabbinic prohibition. Why is it only rabbinic? Because the prohibition—after all there is grinding, the labor of grinding. The labor of grinding is only when you turn the millstone with your hand and grind the wheat. But if you place the wheat there and the water turns the millstones, or according to the whole issue of indirect causation, in that situation there is no Torah prohibition. That’s basically what he argues. “And so too it implies in Tosafot on page 18 and elsewhere”—he brings some proofs from the Talmud there on page 18—“and even if he placed it there, perforce, even if he placed it there on the Sabbath, there is no liability for a sin-offering. And so the Smag and Smak explicitly wrote. And see Tosafot at the first chapter”—yes, page 71a, sorry. It’s not the end of the first chapter; it should be the first chapter, not the end of the first chapter, a mistake. The first chapter of Tractate Shabbat, yes, about taking bread out of the oven.

“However, from what is written in section 316 regarding a trap in the name of Tosafot, it seems that one is liable for a sin-offering for something that comes about on its own.” What happens if I set traps before the Sabbath and during the Sabbath an animal enters and is trapped? So the trapping happens by itself; the trap caught it, not directly because of me—I only set the trap before the day began. Tosafot says that for such a thing you are liable for a sin-offering. It really counts as though you trapped on the Sabbath. So you see that when you activate an implement, even if afterward it works by itself, that counts as actual liability for a sin-offering. And accordingly, says the Magen Avraham, putting wheat before the day begins into millstones that are operated by water on the Sabbath would also really be liability for a sin-offering, similar to placing bread in an oven where it bakes. He brings proofs for this from placing bread in an oven, “and so it also implies in chapter 8 of Maimonides.”

Meaning, that’s in parentheses—“and so it implies in chapter 8 of Maimonides”—and then he goes back and says that there is no Torah prohibition in it, okay? But in Tosafot there on page 4 in Shabbat it implies that one is liable for a sin-offering, and he rules that it is only a rabbinic prohibition. And then telling a gentile is a double rabbinic prohibition, because it is only a rabbinic prohibition. And with a double rabbinic prohibition in a case involving a commandment, they did not decree.

Now against this comes the Even HaOzer and other later authorities, though people generally associate it with the Even HaOzer disputing him; this is brought in the Bi’ur Halakhah there in 252: “See the Magen Avraham, who inclines to say that placing wheat into a watermill on the Sabbath does not incur liability for a sin-offering, because the grinding afterward comes by itself. The grinding comes by itself. And he brought proof for this from Tosafot on page 18. But all the later authorities rejected his proof, and likewise in the Smag and Smak as we have them, no hint of this is found. And likewise in Maimonides chapter 8”—all the sources he brings are not proofs. “And the later authorities agreed”—Eliyahu Rabbah, Even HaOzer, Dagul MeRevavah, Chelkat Mechokek and others—“with what the Magen Avraham himself brought as proof from the words of Tosafot on page 17 regarding a trap, that one who spreads a trap and at the time he spreads it the animal enters it and is trapped is liable, even though it comes about on its own. And similarly when one bakes in an oven, even though the baking comes on its own afterward, nevertheless it is called a real act. Even though he does not bring the fire to the bread, but rather the bread to the fire, and the fire performs its action only afterward, nevertheless he is liable. And the same applies in our case”—meaning the millstones—“even though the grinding comes by itself afterward, nevertheless he is liable. And see the Even HaOzer there for further proofs on this.”

First of all, I’ll comment on this with several remarks. The comparisons they make between these millstones and trapping and cooking are somewhat problematic, because in trapping and cooking, that is the ordinary way they are done. Whereas with millstones—hand-mills—so I say: a hand-mill is a way I can grind with my own hands. You could say, fine, so a watermill is also not something strange. Watermills also exist, and there indeed it happens by itself. But in trapping and cooking, this is really the normal way of the labor, according to that reasoning we saw in the Rosh; this really is the normal way of the labor.

From the comparison the Bi’ur Halakhah makes here, and all these later authorities make here, it seems that they are not addressing this as a special rule in special labors that are normally done this way; rather, they treat it as a general question: what happens when you do an action in a way that is completed by itself? And they do not distinguish between labors that are normally done this way and labors that are not normally done this way.

Now here I remind you of what I said above: for example regarding trapping, that is literally the normal way to do it. But in cooking—notice—he himself distinguishes between bringing the fire to the thing and bringing the thing to the fire. And bringing the fire to the thing is obviously, for him, a direct manual act, even though the cooking of course only happens afterward. I lit a fire under the pot; it takes time for the fire to cook the food. For him, that is still considered a direct act. But if the fire is already burning and I put the food on it, that is called something that happens afterward by itself. That itself requires explanation; it somewhat recalls the distinctions we discussed earlier. But beyond the question of why there is a distinction between those two, the very fact that there are two options, both of them reasonable, and he still treats it as a labor whose normal way is this, means that this is not the second explanation I suggested above in the Rosh, right? That is, since placing the thing on the fire is not something strange. True, there is also another way to do it, but you can’t say that this way is strange. It isn’t strange. For him, maybe that is enough, okay? And therefore he does not address the point that in cooking this is the normal way to do it.

What about trapping? In trapping, simply speaking, that is the only way to do it. There is no way to catch—I’m not talking about catching a turtle, okay? I’m talking about catching a deer. To catch a deer you need a trap; there is no other way to do it. So therefore it almost always really happens by itself, comes about on its own. Now on the Sabbath, from the fact that he also connects baking on the Sabbath to this issue, it seems that for him it is enough that this method is not strange; it does not need to be the case that there is no other reasonable way to do it. I don’t care if there is also another reasonable way, so long as this way is also reasonable.

Now on the face of it, the Even HaOzer and the Mishnah Berurah and all these dear Jews—when they connect all these labors to each other and assume as obvious that indirect causation on the Sabbath is liable, right?—that is basically what they are saying. Something that happens by itself, that’s exactly indirect causation. That is basically what they are saying: indirect causation is liable. Ostensibly, that is like Rashi’s position—that indirect causation is liable. Because according to the Rosh there is no general rule that indirect causation is liable; indirect causation on the Sabbath is exempt. Only in winnowing, because that is the normal way to do it.

That isn’t necessary, because it could be that they hold like the Rosh, only they claim that baking and trapping are also labors like winnowing. There too, that is really the normal way to do it, and therefore they join winnowing. But in other labors, whose normal way is not to be done by wind, there it would be exempt, either because of an unusual manner or because indirect causation is exempt, as we discussed last time. So it is not certain that one can really assign them to Rashi.

By contrast, regarding the Magen Avraham, all these objections really are difficult against the Magen Avraham, and the question is what he would answer. So apparently the Magen Avraham would answer that grinding in a watermill is not the normal way to do the labor; indirect causation is exempt. He would say like the Rosh: indirect causation is exempt. These labors you brought me—baking, trapping, and so on—are like winnowing because that is the normal way to do them. Why is that a difficulty for what I’m saying? I am talking about grinding. Grinding is done with a hand-mill; a watermill is a gimmick, not the normal way. In the Tabernacle—let’s say, certainly if we’re going by the Tabernacle—it is very likely that even if they ground something there, they did not do it in a watermill. In the desert they didn’t have waterfalls to run watermills. The Holy One, blessed be He, gave them miraculous springs there, but I don’t think there were miraculous waterfalls there, okay? So the Magen Avraham’s answer is simple. And I say again: the other later authorities could apparently also fit with the Rosh, only assuming that a watermill is also a normal way. But from the very fact that they attack the Magen Avraham and do not see any room at all to distinguish, perhaps there is some hint there that they really go with Rashi and not with the Rosh. So here there is room to hesitate.

In any case, the claim is that with a watermill this really could at least be a practical difference between Rashi and the Rosh on this question of whether indirect causation on the Sabbath is liable or exempt.

Now opposite this there is another Talmudic passage in Shabbat 120, about causing extinguishing. The Talmud there says as follows. Mishnah: “One may make a barrier with all kinds of vessels, whether full or empty.” If there is a fire and I want to stop it by a barrier of vessels, then the Mishnah says that it is permitted to make a barrier of vessels to stop the fire, whether full of water or empty, so that the fire should not pass. “Rabbi Yosei prohibits new earthenware vessels full of water, because they cannot withstand the fire and they burst and extinguish the fire.” Yes, because when the fire reaches new vessels—new vessels have not yet been exposed to fire—then the fire can crack them, and then what happens? The water spills out and extinguishes the fire. So he is really causing extinguishing. So Rabbi Yosei claims that causing extinguishing is prohibited, and the first tanna apparently holds that causing extinguishing is permitted. Okay? So for our purposes there is basically a tannaitic dispute about indirect causation in Sabbath labors. So we need to understand how this fits with the conclusion of the Talmud on page 60 in our discussion, in the dispute between Rashi and the Rosh.

The Talmud there says: “Is this to say that the Rabbis hold that causing extinguishing is permitted, and Rabbi Yosei holds that causing extinguishing is prohibited? But we have heard the opposite from them. For it was taught: one may make a barrier with empty vessels and with full ones that are not likely to break, and what are full vessels that are not likely to break? Metal vessels. Rabbi Yosei says: also the vessels of Kefar Shihin and the vessels of Kefar Chananyah are not likely to break.” So in effect this comes out the other way around. It’s not exactly the other way around, because Rabbi Yosei does not permit even vessels that are likely to break; he only says there are more vessels that are not likely to break, not only metal vessels. But everyone agrees that if there is a vessel likely to break, it is prohibited—both Rabbi Yosei and the Rabbis. And Tosafot and Rashi already note that there, so it’s not really the reverse. And the Talmud says: “And if you say, reverse the Mishnah—Rabbi Yosei in the baraita was speaking according to their view.” And Rabbi Yosei—we would have to reverse the Mishnah. Rabbi Yosei would then say causing extinguishing is permitted, and the Rabbis would say causing extinguishing is prohibited. And in the baraita Rabbi Yosei is speaking according to the Rabbis’ view: you ask which vessels are fit not to break; I say to you that even the vessels of Kefar Shihin are not fit to break, but for me personally that is irrelevant. So that’s one possibility.

And then the Talmud says: “But can you really reverse it? Did not Rabah bar Tahlifa say in the name of Rav”—I’m reading here—“Who is the tanna who holds that causing extinguishing is prohibited? Rabbi Yosei.” So you cannot reverse it; Rabbi Yosei prohibits causing extinguishing. Rather, do not reverse it, and the entire baraita is Rabbi Yosei, and there is a missing clause, and this is what it teaches: one may make a barrier with empty vessels and with full ones that are not likely to break. And what are vessels not likely to break? Metal vessels. And vessels of Kefar Shihin and vessels of Kefar Chananyah are also not likely to break, for Rabbi Yosei says that vessels of Kefar Shihin and vessels of Kefar Chananyah are also not likely to break.” In short, the whole baraita is Rabbi Yosei, and we remain with the original conception. According to the Rabbis—again, keep your head straight—according to the Rabbis, causing extinguishing is permitted. According to Rabbi Yosei, causing extinguishing is prohibited, and the whole baraita follows his view. That is where things stand at this point.

The Talmud continues and says: “And one may raise a contradiction from the Rabbis against the Rabbis, and from Rabbi Yosei against Rabbi Yosei. For it was taught: if a divine name was written on his flesh, he may not wash, nor anoint, nor stand in a filthy place,” because he may come to erase the Name or dishonor it. “If an immersion for a commandment happened to him”—he must go into the ritual bath to immerse and the Name is written on his flesh—“he wraps a reed around it and goes down and immerses so that it will not be erased. Rabbi Yosei says: he always goes down and immerses in his usual manner, provided he does not rub it.” Because that is indirect causation, and indirect causation is permitted. And the first tanna says indirect causation is prohibited. So this reverses the positions. It comes out that the first tanna prohibits indirect causation and Rabbi Yosei permits indirect causation.

Now here already, a comment: this case of indirect causation is not in the laws of the Sabbath; it is in the laws of erasing the divine name. And the Talmud did not distinguish, right? It asks from the laws of erasing the divine name to the laws of the Sabbath. Now as for the Rabbis, who permit indirect causation on the Sabbath, then apparently of course they should permit indirect causation in all of Torah law, because on the Sabbath there is more reason to prohibit indirect causation, as we saw in Rashi in our passage. But according to Rabbi Yosei, who prohibits indirect causation on the Sabbath, what is the difficulty from the fact that he permits it here? Indirect causation on the Sabbath is because the Torah prohibited purposeful labor, therefore it is prohibited. Here we are dealing with erasing the Name, not the laws of the Sabbath, so here indirect causation would be permitted. The Talmud assumes it is the same thing. That is a difficulty on Rashi in our passage, right?

Notice the difficulty, and then what? Then they say to him: there is an explicit verse, “And you shall destroy their name from that place; you shall not do so to the Lord your God.” Actual doing is what is prohibited; indirect causation is permitted. From here all the later authorities derive what I already mentioned in the past: only in things whose prohibition is fundamentally a prohibition of doing did they permit it if you do it indirectly. But if the prohibition is a prohibition on the result, then even if you did it indirectly, it is prohibited. And that is basically what the Talmud is saying.

The Talmud is really saying regarding Rabbi Yosei that Rabbi Yosei prohibits indirect causation on the Sabbath, and what Rabbi Yosei permits here, namely indirect causation, is because here actual doing is required, and doing indirectly is not considered doing. So from that what do we learn regarding the Sabbath? That on the Sabbath actual doing is not required, right? Sabbath is a result-based prohibition, and since it is a result-based prohibition, therefore there is no exemption for indirect causation. Or in other words, as Rashi says, “his intent was fulfilled”—the result was achieved. It really very, very much resembles Rashi.

The Talmud asks: “If so, here too it is written, ‘You shall not do any labor’—actual doing is what is prohibited; indirect causation should be permitted?” The Talmud answers: “Since a person is panicked over his property, if you permit him this, he will come to extinguish.” Suddenly we switch to a rabbinic prohibition. That is, on the Sabbath indirect causation is permitted, and only rabbinically is it prohibited—and this is even according to Rabbi Yosei. According to the Rabbis, indirect causation is actually permitted on the Sabbath. According to Rabbi Yosei, who prohibited it on the Sabbath, that prohibition is only rabbinic. This is directly against Rashi. Not only directly against Rashi; they also say here that “you shall not do any labor” means that the Sabbath too is a prohibition of doing labor. I don’t care that his intent was fulfilled; if you did not perform an act, you are exempt. So both the reasoning is against Rashi, and the halakhic outcome is against Rashi—everything is against Rashi.

“If so, the Rabbis contradict the Rabbis. And if there, where a person is panicked over his property, it is permitted, here all the more so?” And then they drop that entirely. Meaning that with erasing the Name this is a totally different topic, and that doesn’t matter now. They drop it. For our purposes, what remains in the end is that causing extinguishing according to the first tanna is permitted, and according to Rabbi Yosei it is prohibited rabbinically. So according to both of them, this is difficult for the conclusion of the passage on page 60.

According to the Rosh, it is not difficult, right? Right? Why? Because according to the Rosh, the conclusion of the passage on page 60 is that indirect causation is really permitted, except in labors like winnowing whose normal way is to be done by wind. But here extinguishing is not normally done through indirect causation. Therefore here indirect causation is permitted—or prohibited rabbinically, doesn’t matter—but there is no Torah prohibition. But according to Rashi, who has a general principle that whatever is done indirectly on the Sabbath is liable as long as his intent was fulfilled—well, here this is the classic case of “his intent was fulfilled.” He put there new vessels liable to break before the fire, filled them with water. Why did he fill them with water? So that the fire would break them and the water would come out and extinguish the fire. One thing leads to another. Right? So in the end his intent was fulfilled. Therefore he should have been fully liable according to Rashi. So this is a direct contradiction to Rashi.

And here I’ll say: perhaps this is really why Maimonides, for example in chapter 22 of the laws of Sabbath, rules that indirect causation is exempt. “It is permitted to make a barrier with all kinds of vessels, whether full or empty, so that the fire not pass; even new earthenware vessels full of water may be used to make a barrier, even though they will certainly burst and extinguish, because causing extinguishing is permitted.” Now look, this isn’t so simple, because one could have said: this is in a situation of loss; I need to extinguish the fire. Not that this is permitted outright—there is a rabbinic prohibition—but because there is a fire problem, they allowed it. But in Maimonides’ wording it does not sound that way. Because Maimonides’ reason is: because causing extinguishing is permitted. There is no problem with it whatsoever. Not: because causing extinguishing is exempt and therefore in a case of loss they permitted it. Rather: causing extinguishing is permitted. That’s Maimonides’ simple wording; it is not otherwise.

And the Shulchan Arukh also rules that way. But here you see that the Rema adds at the end: “causing extinguishing is permitted,” gloss: “in a case of loss.” The Rema says: in a case of loss. But for our purposes that makes no difference. Because for our purposes, permitting it in a case of loss means there is no Torah prohibition; there is only a rabbinic prohibition. So either it is entirely permitted, or it is rabbinically prohibited—thus the law was decided. So how can that be? How does that fit with Rashi? And so he says here: causing extinguishing is permitted. So the Bi’ur Halakhah here writes: causing extinguishing is permitted, and there is no problem with it. How does that fit with Rashi?

So according to the Rosh it works out, but according to Rashi there is a whole series of later authorities who want to make the distinctions we saw in the laws of indirect causation in damages. That is why I brought up this whole story. For example, in the responsa Beit Yitzchak, he brings in the name of Zera Emet—it doesn’t matter—who distinguishes between winnowing, where the labor is done immediately, only another force is involved in it, and causing extinguishing, where the extinguishing happens later, and therefore that was permitted. But in winnowing, where the wind assists him, the labor is done immediately, only with the help of another force, and that is what was prohibited. Or in the responsa Dovev Meisharim: in winnowing there is certainty that it will happen, whereas in causing extinguishing there is a chance the vessel will not burst, so it’s not certain; or the person takes part in the action versus does not take part in the action. In short, you see these are exactly the distinctions between indirect causation and more direct consequential causation. The same distinctions that the medieval and later authorities make in order to distinguish between those categories in damages, the later authorities here are basically applying, in Rashi’s view, also in the laws of the Sabbath.

Now this is really astonishing. Why? Because if there really is a distinction between those two forms of causation also in the laws of the Sabbath, then the entire Talmudic discussion on page 60 never gets off the ground. Why? What does the Talmud on page 60 say? I have one who fans a fire and the wind fans it, on one side, and one who winnows and the wind assists him, on the other side. Then Rav Ashi comes and says: okay, according to Rashi, on the Sabbath the Torah prohibited purposeful labor, therefore this is prohibited. What does that have to do with anything? Say instead: because here it is more direct consequential causation and not indirect causation. Also on the Sabbath. Then the distinction is not between the Sabbath and damages; it is between two forms of causation. That is what should have been said. But Rashi writes there a distinction between the Sabbath and damages, not between two kinds of causation on the Sabbath or in damages, it doesn’t matter. According to what these later authorities write, it is astonishing. According to what these later authorities write, there is really no difference between the Sabbath and damages. In both there is a distinction between indirect causation and more direct consequential causation. In indirect causation both are permitted; in more direct consequential causation both are prohibited. So what is Rav Ashi doing in the passage on page 60?

We are forced to say—and in any event, in order to reconcile Rashi there is no choice—we have to say that indeed one must distinguish. But as I said, there are several parameters that distinguish between indirect causation and more direct consequential causation, right? Suppose we choose the distinction of immediacy. What is immediate is the more direct category, and what is not immediate is indirect causation. That is in damages. On the Sabbath too, what is immediate will be prohibited. Only on the Sabbath there is another distinction as to what is permitted—not the distinction between indirect causation and more direct consequential causation in damages, but another parameter that does not operate in damages and does operate on the Sabbath. And because of that, Rav Ashi could not simply make the distinction between those two forms of causation. He had to make the distinction between damages and the Sabbath. I mean structurally; I’m not proposing a specific distinction here. I’m saying the logic has to be like this: while we make a distinction both on the Sabbath and in damages between indirect and more direct causation, it is not the same distinction. In damages, the difference is parameters A, B, and D. And on the Sabbath, the difference is parameters H and Z. Okay? Just as an illustration. Fine? And then what comes out is that if two cases in Bava Kamma enter the same category in the laws of Sabbath or in damages, then you cannot distinguish them from each other. Winnowing with the wind assisting him and fanning a fire where the wind fans it are the same thing. And so you are forced to make some distinction between the Sabbath and damages. How can such a distinction exist? Because on the Sabbath there is some division that does not exist in damages. But also on the Sabbath there are distinctions between different kinds of indirect causation. That is what one must say in Rashi’s view. So that is the structure.

Just one last comment, for amusement. Well, we won’t get into “the Tenth Preventer” and Tzomet devices, and I’ll just ask you a riddle, a riddle to entertain yourselves with in your free time. First of all, two things. Can the verse brought in the passage on page 120 serve as a source for the exemption of indirect causation? I said I don’t know of a verse. It says “doing,” and indirect causation is not doing, right? We saw the verse: “You shall not do so to the Lord your God”—actual doing is what is prohibited; indirect causation is permitted. Right? Here. Obviously not. The verse doesn’t say that at all. The verse requires actual doing. I say by logical reasoning that indirect causation is not doing. I am asking what the source is for that. Once I know by reasoning that indirect causation is not doing, then obviously wherever doing is required, indirect causation will be exempt. But if I am looking for a source for the very distinction between indirect causation and doing, it does not come from here. What is written here is only “You shall not do so to the Lord your God.” That’s all. Fine—but who said that exempts indirect causation? Only because I assume that indirect causation is not doing do I conclude that indirect causation is exempt. Therefore this verse is not a source.

[Speaker D] But if I say—

[Rabbi Michael Abraham] —that the Torah—

[Speaker D] —comes to say that it prohibits specifically doing, then in any case I’ll have to invent some category that is not doing.

[Rabbi Michael Abraham] Two people who did it together, I don’t know, something else—it doesn’t matter—but it’s not necessarily indirect causation. You have to derive the exclusion of indirect causation by logic.

Another thing—just a riddle, a Rabbi Akiva Eiger riddle. There are questions about indirect causation regarding positive commandments. If one fulfills a positive commandment indirectly, does that count as fulfilling the commandment? Usually people distinguish between commandments requiring an action and commandments requiring a result, but this is a question the later authorities raise in several contexts. Rabbi Akiva Eiger asks a difficulty about an idolatrous city. Regarding an idolatrous city it says that if there is a mezuzah in it, one does not apply the law of an idolatrous city to it. Why? Because you cannot burn it. You must burn all the property of the city, and the mezuzah cannot be burned because of “You shall not do so to the Lord your God,” as we just saw. And since that is so, you have to bring all its spoil out to the city square, and if that cannot be done with all its spoil, then you do not do it at all. We require the verse exactly as written. That’s what the Talmud in Sanhedrin says.

Rabbi Akiva Eiger asks: if causing extinguishing is permitted, then why not burn it indirectly? After all, one can burn the mezuzah indirectly. There is a problem of erasing the divine name here, but by indirect causation, causing is permitted; causing the erasure of the divine name is permitted. So let’s burn it indirectly and everything will be fine. Then one can burn everything, so why do we not apply the law of the idolatrous city when there is a mezuzah?

[Speaker D] But isn’t it about bringing it out into the city square?

[Rabbi Michael Abraham] What?

[Speaker D] You need to take all the items and gather them together—

[Rabbi Michael Abraham] Bring them out to the city square and burn them indirectly.

[Speaker D] “You shall not do so to the Lord your God”—don’t take the mezuzot and put them in a place where you are about to burn them.

[Rabbi Michael Abraham] So I’ll put them somewhere else—what difference does it make? On the other side of the street. That’s not the point.

[Speaker C] The fact that it’s possible to burn the city isn’t enough. The Torah commands burning, so you found some trick to do it in a permitted way, but there has to be a way to fulfill it in the ordinary manner—that’s the point. What is the logic of the exposition?

[Rabbi Michael Abraham] No—how do you know it has to be fulfilled in the ordinary manner?

[Speaker C] No, because this whole exposition isn’t because there is some technical problem.

[Rabbi Michael Abraham] No, it’s enough that it is impossible to burn—

[Speaker C] —that in certain ways it’s impossible to burn; that is enough to exclude it.

[Rabbi Michael Abraham] What is the logic of the exposition?

[Speaker C] That’s what you’re saying. In my opinion, the logic of the exposition is something similar to the stubborn and rebellious son, where they wanted to limit the cases in which it could happen. I have an even better argument. Why is this almost perfect? Because it excludes almost every normal city from this law—there is always some little mezuzah there.

[Rabbi Michael Abraham] Yes, but that’s not an interpretive argument; that’s an argument of “because that’s what you want.” Why? If that’s what you want—if you want to save the cities—that’s all.

[Speaker C] But it’s pretty transparent that that’s the purpose.

[Rabbi Michael Abraham] I don’t buy it. I think there has to be some anchor for it in the verses and the expositions themselves; it’s not enough that you want to save. If you want to save, you can save the whole world.

[Speaker C] True, but that’s what they did with the rebellious son… I didn’t understand—I don’t really understand what the discussion is about. With the stubborn and rebellious son that is certainly the story.

[Rabbi Michael Abraham] Not true, no.

[Speaker C] Oh? The requirement that the father and mother have the same voice—does that arise directly from the simple meaning of the verses?

[Rabbi Michael Abraham] Not the plain meaning—midrash.

[Speaker C] But it’s the strangest midrash in the world if you don’t come to it with some prior reasoning. Without that reasoning it has no point at all.

[Rabbi Michael Abraham] A reasoning that helps understand it, yes. But if you think it’s enough that I want to save the child in order to make all kinds of bizarre expositions like that, then I can now abolish the entire Jewish law for you. There won’t be a single law left standing.

[Speaker C] One absolutely can abolish laws on grounds like that. Really one of the—

[Rabbi Michael Abraham] Anyway, in short, one can argue about it; I really don’t agree. But here I have a better explanation. We don’t need to get to that. Do you know what the explanation is? If I burn the mezuzah indirectly, will I be fulfilling the commandment to burn the property? After all, it’s not only… what is at stake here is not only the prohibition against burning the mezuzah; there is also a commandment to burn it. One must burn all the spoil of the city. But if I do it indirectly, it could be that I am not fulfilling the commandment to burn the spoil of the city. Therefore there is no solution of burning it indirectly, because you cannot fulfill the commandment to burn everything. Because fulfilling a commandment indirectly is not fulfillment.

As a friend of mine says, anyone who resolves a difficulty of Rabbi Akiva Eiger has an even number of mistakes. Rabbi Akiva Eiger asked the question against the Talmud, so he probably made one mistake. But surely you do not understand the Talmud better than Rabbi Akiva Eiger, so if you answered it, then you probably have another mistake. So whenever you make mistakes, make them in pairs so that one cancels out the other.

[Speaker E] And why isn’t every fire considered indirect causation? In every fire case shouldn’t we discuss it from the perspective of indirect causation—why is that only in cases that meet criteria making it not indirect causation?

[Rabbi Michael Abraham] Because of arrows? Why is it indirect causation? What do you mean, indirect causation?

[Speaker E] No, so only if… only if it’s his arrows.

[Rabbi Michael Abraham] No, no, no. Both because of his property and because of arrows; I don’t think it’s connected to this. Fire is not indirect causation.

[Speaker E] But it isn’t the person’s own act. No, in cases where it’s his property, the meaning is that it isn’t indirect causation, yet it still isn’t the person’s own act.

[Rabbi Michael Abraham] A person who burns something by means of his property—what’s the problem?

[Speaker E] It’s not “and you shall burn.” What the Rabbi is saying is that it doesn’t count as fulfilling the commandment, because it wasn’t you who did it, but indirect causation—isn’t that also lacking here?

[Rabbi Michael Abraham] That depends on this larger question: does indirect causation with positive commandments really count as fulfillment or not? If we say it does not count as fulfillment, then Rabbi Akiva Eiger’s question is answered. I’m saying, the later authorities discuss this; I think Rabbi Eliezer Gordon has an article on it. It really arises only in a much later period. Rabbi Eliezer Gordon—the father-in-law of Rabbi Elchanan, yes—

[Speaker E] The dean of Telz, yes.

[Rabbi Michael Abraham] So he has some article on this issue of indirect causation in positive commandments. I think Rabbi Akiva Eiger’s question proves that indirect causation does not help for positive commandments.

[Speaker C] I think in the end you’ll also have to get to the issue of… after all, if the mezuzah got burned on its own—so does the law of the idolatrous city now return to the city? Apparently not, right? It just happened to burn. Burned after it had already become an idolatrous city?

[Rabbi Michael Abraham] Yes, after the law of an idolatrous city had already applied—it doesn’t come back.

[Speaker C] It doesn’t come back, right? Because if there was some moment when it wasn’t possible to carry out the law, then that’s it. That’s the exposition. Okay, so once you say that, then I say this: if there was even one moment when it was impossible to carry out the law of burning and you had to resort to indirect causation, that is exactly what the exposition excludes. You’re saying there’s no logic to that.

[Rabbi Michael Abraham] No—how did you jump there? Those are two completely different things. What I am saying is a simple logic: once the city is exempt, it is exempt; it doesn’t become obligated again afterward.

[Speaker C] No, apparently you’re asking what is the explanation of the exposition. That there is a technical problem—that you can’t burn a mezuzah. But this exposition is strange. Why should I care that there is one mezuzah there? Take it out, put it aside.

[Rabbi Michael Abraham] What difference does it make? It says, “And you shall burn all its spoil,” so they expound from that that all its spoil has to be burnable.

[Speaker C] But why? Why? Then just say that “all its spoil” is because these are evil things that need to be burned, but a mezuzah is good—why would you…

[Rabbi Michael Abraham] From questions like those I wouldn’t build any structure. You can say “maybe,” and maybe I won’t even have an answer why not say it. And still I do not accept this idea that people make expositions that have no basis just because they want to save the city or the rebellious son.

[Speaker C] It’s not that it has no basis—that is the basis. I don’t see any other reason here.

[Rabbi Michael Abraham] If the Torah didn’t mean that, then you—

[Speaker C] —can’t expound it that way. I’m having trouble understanding. What are you trying to say? That one need not find any reason for this exposition?

[Rabbi Michael Abraham] No, of course one has to find a reason.

[Speaker C] So what’s the reason? I don’t understand the alternative you’re offering.

[Rabbi Michael Abraham] What reason? Not purpose. You have to distinguish. So what’s the reason?

[Speaker C] Fine, what’s the reason? What is the reason that an idolatrous city is excluded when there is a mezuzah?

[Rabbi Michael Abraham] I’m saying that once one understands the verse this way, or the root of the exposition this way, then you can say: we do not burn the city. But your wanting to save the rebellious son—does that mean that because his father and mother are equal in height, therefore we don’t apply the law of the rebellious son to him? That’s just inventing some headline. I want to understand what the reason really is in the case of the idolatrous city.

[Speaker C] I want to understand what the reason is in the case of the idolatrous city.

[Rabbi Michael Abraham] Excellent question. What does that have to do with us now?

[Speaker C] Here—I’m offering an alternative that in my opinion is the only one.

[Rabbi Michael Abraham] It’s not the only one. It’s not the only one, and it’s also not—

[Speaker C] I’m saying, not only is it not—

[Rabbi Michael Abraham] —the only alternative, it’s not an alternative at all. Even if I don’t yet have other alternatives. Because this is a purposive issue. We don’t do things like that. What do you mean? I want to save the idolatrous city, so I’ll make flimsy expositions? What?

[Speaker C] It’s not a flimsy exposition. Why? I really think the Torah intended that an idolatrous city is something that almost never applies. And in order to implement that—

[Rabbi Michael Abraham] If the word “all” had not been written, would you still say that? What? If “all” had not been written.

[Speaker C] If “all” had not been written? I would find something else that compromises it to some extent or another.

[Rabbi Michael Abraham] So they didn’t find “all”; they just did whatever they wanted. Fine—then they need to say that explicitly. I don’t accept it. Okay, but what’s the alternative?

[Speaker C] For now it sounds like some Brisk-style thing.

[Rabbi Michael Abraham] It’s like when Shimon Peres asks, “What’s their alternative?” Even if I don’t have an alternative, when your alternative is not an alternative, then I don’t agree with it. So it requires further analysis.

[Speaker C] Fine. Fine, so it requires analysis. No, but you can’t solve the riddle before dealing with that question.

[Rabbi Michael Abraham] Of course you can solve it. I’m claiming that once this is a case where you have to do the action, and with a positive commandment indirect causation does not count, then there is no question. What’s the problem?

[Speaker C] Because one has to understand, on that basis, why maybe that case is not excluded after all.

[Rabbi Michael Abraham] I need to understand the logic behind the exposition in order to understand what exactly is being excluded.

[Speaker C] Maybe one doesn’t object on the basis of a “maybe,” but one can answer on the basis of a “maybe.” One can raise a difficulty by forcing the statement, and one can resolve it by forcing the statement.

[Rabbi Michael Abraham] You’re asking the question—I don’t—

[Speaker C] —understand; I’m not the one who raised the question.

[Rabbi Michael Abraham] Rabbi Akiva Eiger raised the question, and I am answering it.

[Speaker C] So to answer it, it’s enough to say “maybe.” I understand, okay, fine, fine. Okay friends, all the best. Goodbye. All the best.