The Chapter “HaKones” – Lesson 7

[Rabbi Michael Abraham] Okay, let’s begin. We’re continuing now with the matters of indirect causation. I gave the general introductions regarding indirect causation and actionable causation, and now we’re entering a bit into the actual passages themselves. In the Talmud these matters begin with a statement that appears here at the bottom of the page, after the Mishnah and after all the discussions we saw regarding liabilities of guarding. So the Talmud says like this: It was taught: Rabbi Yehoshua said, there are four things such that one who does them is exempt in human law but liable in the judgment of Heaven, and these are they: one who breaks a fence before another person’s animal, one who bends another person’s standing grain before a fire, one who hires false witnesses to testify, and one who knows testimony on behalf of another and does not testify for him. So these four examples are basically four cases where there is only an obligation to satisfy the judgment of Heaven, but not human law. Rashi here writes: exempt in human law—you see? Exempt in human law—because he holds that in the law of damages, indirect causation is exempt. Okay? By the way, “because he holds that indirect causation in damages is exempt” is interesting, because on the face of it there isn’t anyone who holds otherwise, at least I don’t think there is anyone who holds otherwise, unless Rashi belongs to that approach, and plainly he doesn’t. But there are those who say that Rabbi Meir, who judges actionable causation, is really saying that actionable causation is no different from indirect causation—we talked about this—but Rabbi Meir simply obligates indirect causation in damages, and once he obligates it, he calls it actionable causation in order to distinguish it from cases of indirect causation elsewhere in Jewish law, not in damages, where indirect causation is exempt. And if that is really so, then maybe there is room for this statement of Rashi, “because he holds that indirect causation in damages is exempt,” implying that there is some dispute here and that this passage goes according to the view that indirect causation in damages is exempt. Because on the face of it, it doesn’t seem there is any dispute: in principle, indirect causation in damages is exempt according to everyone, while in actionable causation Rabbi Meir judges actionable causation. And maybe from the passages one could think there are those who don’t judge actionable causation, but even that is not entirely simple. Fine, in any case, Rashi is already telling us here that all these cases belong to the category of indirect causation. That’s why I gave all those introductions to indirect causation, because all four of these cases belong to that category. Then the Talmud begins to discuss each one in turn: The master said, one who breaks a fence before another person’s animal—what are the circumstances, and so on. Then after that it says: The master said, one who bends another person’s standing grain before a fire—what are the circumstances? The master said, one who hires false witnesses to testify; and one who knows testimony on behalf of another and does not testify for him—that’s the fourth case. It goes until here; here it ends. Now the Talmud says: And are there no more? I’m just giving the general outline of the passage. And are there no more? But there are! And then there’s a kind of mnemonic here for all the passages that appear here: one who performs labor with the waters of purification and with the red heifer, then they start talking here about damage that is not perceptible, frightening another person, one who sends fire through a deaf-mute, an imbecile, or a minor, and various additional things where too this is indirect causation and he is exempt in human law but liable in the judgment of Heaven. Then the Talmud says the following sentence: Yes, there are indeed many. Right, there are many additional cases besides these four, and these were necessary for him. So why were דווקא these four cases brought? You might have said that even in the judgment of Heaven he should not be liable; therefore it teaches us otherwise. Meaning, in these four cases there was some initial assumption that even in the judgment of Heaven he would not be liable—there is some ground here for leniency—and the other cases weren’t brought because that’s obvious: exempt in human law but liable in the judgment of Heaven. Every case of indirect causation is like that—or not necessarily indirect causation; there are additional cases that are not cases of indirect causation, or not all of them are—but there there was no initial assumption, no novelty, and therefore it wasn’t brought here in the list. Then the Talmud starts constructing a need-for-all-cases argument. Yes, you need them. It basically means that these four cases were necessary here, because had they not been brought, I would have thought he is exempt even in the judgment of Heaven. Then the Talmud explains in each of them why I would have thought that. So the Talmud says: One who breaks a fence before another person’s animal—you might have said, since it was destined to be demolished, what did he really do? And so on. In each one there was some initial assumption to exempt, and therefore all these cases are brought. And that’s it, up to here. Here it ends, and then—an interesting question is why this is brought here. Why did the context of the passage lead to bringing this statement of Rabbi Yehoshua that there are four things such that one who does them is exempt in human law and liable in the judgment of Heaven?

[Speaker B] One who breaks a fence before another person’s animal. That’s the connection, I think—the connection is “one who breaks a fence before another person’s animal.” It’s connected to the Mishnah; it’s similar to the Mishnah. Why? Because in the Mishnah too we’re talking about sheep where there was a fence—he locked it properly before them, didn’t lock it properly—meaning these are the same kinds of cases, similar cases.

[Rabbi Michael Abraham] Maybe even the continuation: it was breached at night or bandits breached it. Yes, yes, and then basically they want to say, by the way, that one who breaks a fence before another person’s animal is also exempt in human law but liable in the judgment of Heaven. And in fact, in the Mishnah itself, in another moment we’ll see that you really do see this law, because when it says here, if bandits breached it and it went out and caused damage, he is exempt. And what about the bandits who breached it? Here we’re talking about the owner of the animal. What about the bandits themselves who breached it? From the Mishnah it implies that they too are exempt. Why? Because later it says: if bandits took it out, the bandits are liable. Meaning that when bandits breached it, he is exempt; when bandits took it out, the novelty is regarding the bandits, that they are liable, not the owner—the owner remains exempt. So you see that the first case, where bandits breached it, is a case in which the bandits too are exempt, not only the owner. Tosafot points this out here too. And if so, then right in the Mishnah itself the law of one who breaks a fence before another person’s animal is already written, because that is basically the case, right? The bandits breached it, the owner is exempt, but you also see from the Mishnah, from the structure of the Mishnah, that the bandits themselves are exempt. And then the baraita comes and says: one who breaks a fence before another person’s animal is exempt—but exempt in human law, though there is liability in the judgment of Heaven. Meaning this is basically a kind of supplement to the Mishnah. And by the way, on that basis, it brings this whole law, these four cases of indirect causation where one is exempt in human law but liable in the judgment of Heaven. And from this we also understand why the bandits who breached it are exempt: the bandits are exempt because it is indirect causation. That’s really the point. And what if the owner himself breaks open the door, the wall—what would the law be then?

[Speaker C] It would be considered as though he didn’t guard it.

[Rabbi Michael Abraham] Right, because the owner has a special law. It has nothing to do with indirect causation. The owner has a special law: once he didn’t guard the animal, he is liable for the damage caused by the animal. And we talked about a few possibilities as to exactly how to understand that liability. But it’s clear that this is a special law of the owner. So what here—and maybe I’ll mention the two possibilities we discussed—is either that he is liable because he has responsibility for whatever his animal does, with no connection at all to whether he broke it open; it’s just that if he had locked properly, that would exempt him because he would have been under compulsion. So really he is not liable because he broke it open; he is liable because of responsibility for damage his animal causes. It’s just that had he guarded properly, that would exempt him. So with respect to the owner, the breach really has no significance at all. The breach doesn’t obligate him either. He doesn’t become liable because he broke it; on the contrary, the breach only means that he doesn’t have here the exemption that someone who guarded properly has. It’s not that they obligate him because he broke it. That’s according to the responsibility approach. If I understand that the negligence in guarding is what obligates him, then again there is maybe more room to see the breach as the thing that obligates him, but not really. It’s enough that he didn’t lock; he doesn’t need actually to break it. By contrast, another person who is not the owner—obviously no one can make a tort claim against him for not locking it. You could say there’s “do not stand idly by your neighbor’s blood,” or returning lost property, or preventing future damage—fine—but there certainly is no basis here for a tort claim. Meaning, you can’t sue the person who didn’t lock up another person’s animal because he didn’t lock it. So in any case, whether I understand the owner’s liability for damage caused by his animal as responsibility, or whether I understand it as liability for negligence in guarding, this is not the law of one who breaks a fence before another person’s animal. That is something else. From the standpoint of one who breaks a fence before another person’s animal, even the owner himself would be exempt, because breaking it is indirect causation, and one does not become liable for that. What the owner is liable for is because of owner-liabilities, regardless of the fact that he broke the fence. Therefore there are places where one sees—I saw in places where people wrote—that in cases of damage caused by property, a novelty was introduced that there is liability even for indirect causation. Meaning, the person who didn’t lock properly is not directly responsible for the damage. His animal went out, and then it decided to cause damage. So it is obvious that this is only indirect causation, at most indirect causation in this case. But in the fact that the Torah obligates him for damage caused by his animal, that itself is the novelty there—that a person is liable even though he is only an indirect cause. But that was introduced only for the owner, only for someone who has responsibility for damage caused by property. But actually it’s not even really indirect causation. Because if someone didn’t lock properly—not that he broke it open, but that he didn’t lock—not locking is not indirect causation. It becomes indirect causation only because you have an obligation to lock. Meaning, ordinarily a person who didn’t lock would not even be considered an indirect cause of damages. My neighbor sees that my cowshed is open and doesn’t lock it. I’m not home, he can’t update me, and he doesn’t lock it. Now the animal went out and caused damage. Is he exempt because he’s only an indirect cause? What suddenly? He isn’t even liable in the judgment of Heaven. An indirect cause is liable in the judgment of Heaven. He isn’t even liable in the judgment of Heaven; he isn’t an indirect cause. Why isn’t he an indirect cause? Because he didn’t lock. If I, as owner, had not locked, then yes, I would be liable. True—but what I would be liable for would not be by the law of indirect causation. What I would be liable for is because I have responsibility as owner for what my animal does. He has no responsibility. If he had caused it—meaning if he broke in, not just failed to lock, but actually broke my door—there he has some responsibility, but since it is indirect causation, he is liable only in the judgment of Heaven and not in human law. Okay? But that is what’s called indirect causation. Meaning, an owner of an animal who doesn’t lock the door—that’s not an exemption of indirect causation. The novelty is not that he is liable because owners are liable for indirect causation. The novelty is that he has responsibility for what his animal does, or for negligence in guarding. According to the side that says negligence in guarding, one could say: since you have responsibility to lock, then by not locking maybe you become an indirect cause or an actionable cause or something like that, and therefore you are even liable. But that is only because the Torah initially imposed upon you the responsibility to lock. The case in itself is not considered indirect causation. Meaning, a neighbor who has no obligation to lock would not be considered an indirect cause in this case. It’s a bit reminiscent of the dispute between Maimonides and the Raavad. Maimonides writes that a guardian—say someone deposited a field with me for safekeeping. Now you know, the laws of guardians are learned from a general-particular-general rule that they do not apply to slaves, documents, and land. But still, suppose someone deposited a field with me to guard and I was negligent. Maimonides says I am liable. Why am I liable? Because every negligent person is a damager. And a guardian who was negligent is considered a damager. Now there is no exemption for damaging land. Someone who damages land has to pay. In the laws of guardians there is no guardian-liability for land. But in the laws of a damager, there is no such exemption. In the laws of a damager, one who damages land certainly has to pay. So everyone asks him: what do you mean? In what sense is this negligent person a damager? At most he is an indirect cause. What did he do? He was negligent. Meaning, he left the gate open and then animals came in and ate the produce of the field or something like that. So he was negligent, and as a result of that negligence the land or its produce was damaged, whatever. Okay? So at most he is an indirect cause, if anything. So how can you say that such a person is a damager? And notice: if he were a guardian—a guardian has an obligation to lock the door. Once he has an obligation to lock the door, if he did not lock the door, one could say that he is like an indirect cause or an actionable cause, and as a guardian they impose liability on him even though it is actionable causation, unlike an ordinary person. But here, as Maimonides says, the laws of guardians don’t apply, because it’s land. So all you can come to him with is because every negligent person is a damager. So you come to him under the laws of a person who causes damage. But one who causes damage by indirect causation is exempt. Therefore, to my mind it is clear—although there are later authorities who raise difficulties against Maimonides and so on. There are those here who said it, but it seems simple to me in Maimonides. It isn’t detached from the laws of guardians. Clearly, you are considered a damager only because the context is the context of a guardian. This thing was deposited with you for guarding, and you were negligent with it. Only because of that are you a damager. Meaning, if someone else were negligent but had not accepted guarding responsibility, an act of that sort would not be considered an act of damage. It is not the category of a person who causes damage; it is at most indirect causation. Therefore, even though Maimonides obligates him not under the laws of guardians but under the laws of a damager, he is called a damager only because in the background this field was handed to him to guard, and since he betrayed that guardianship, with such a person I relate even to an act of indirect causation as though he damaged directly. Why? Because from the outset there was some obligation upon him to guard. So once he did not guard, someone else who did not guard—it means nothing. But he, since he was supposed to guard and did not guard, such a thing can perhaps even be considered actionable causation, if you want, and therefore he is considered a person who causes damage. Something like that is what I want to say here as well. Meaning, the owner—according to the side that says the owner’s liability is because of his responsibility for his property that caused damage—then it has nothing to do with indirect causation and nothing to do with anything. It’s responsibility. If you had guarded properly, you would have been exempt. As long as you did not guard properly, you remain liable by virtue of responsibility for what the animal did. I’m not interested in whether you guarded, broke, locked—that’s not the point. Meaning, as long as it was not properly guarded, you were not exempted from the liabilities of responsibility. According to the second approach, which sees the owner—that is, which comes with claims against the owner because of negligence in guarding, not because of responsibility for the damage caused by the animal—again I say: because of negligence in guarding, one can see the owner as a damager, since from the outset he had a duty to guard; the Torah imposed on him a duty to guard. So if he did not guard, we see him as a damager, as I said there in Maimonides regarding negligence with land. But it isn’t that an act of this kind is in itself considered an act of a person who causes damage. It isn’t. This is not a person who causes damage. Only because he had a preexisting duty to guard, failure to guard is considered an act of direct damage. Okay, so that’s the context of the passage. So I actually want to go back for a moment to the Mishnah before we enter the Talmud. In the Mishnah, the context, as I said before, is “it was breached at night or bandits breached it.” Yes: one who brings sheep into a pen and locks it properly before them, and it went out and caused damage, is exempt; if he did not lock it properly before them, and it went out and caused damage, he is liable. If it was breached at night or bandits breached it, and it went out and caused damage, he is exempt. If bandits took it out, the bandits are liable. Now notice: there is a novelty here in the stringent direction and a novelty in the lenient direction. The novelty in the stringent direction is what I explained until now: when you are the owner and the duty of guarding is imposed upon you, then you do not need to enter into the categories of indirect causation in order for us to come to you with claims. Since once the duty of guarding is upon you, as long as you do not fulfill that duty of guarding, we will see you really as something like a person who causes damage, or as directly responsible—not directly responsible in the sense of personal action, but directly responsible for the damage caused by the animal. But notice, there is a novelty here in the opposite direction. What happens if it was breached at night or bandits breached it, and it went out and caused damage? He is exempt. Why am I exempt? I’m exempt because I guarded properly. Not because of indirect causation. It is not an exemption of indirect causation. Rather, all that was imposed upon me was a duty to guard, and I fulfilled what was imposed upon me—I guarded. The fact that it was breached at night or bandits breached it, what could I do? Meaning, in such a case my exemption obviously does not belong to the family of indirect causation. My exemption comes from the fact that there is nothing to claim against me. I guarded properly. They put a duty on me to guard, and I guarded. That’s all. What the Mishnah is discussing is the owner’s exemption, but if we look from the standpoint of the bandits, the bandits’ exemption is indeed an exemption of indirect causation. If bandits breached it, then the bandits’ exemption is an exemption of indirect causation, okay? It’s like one who breaks a fence before another person’s animal, which we saw in the Talmud. And indeed Tosafot here—I mentioned this earlier—says: “or bandits breached it,” and it was necessary to teach us that even bandits are exempt when they did not take it out. You might have thought that bandits would be liable when they breached the fence? No—the bandits are exempt as long as they did not take it out. What happens when they took it out? The Talmud later says: if bandits took it out, the bandits are liable. Obvious—since once they took it out, it stands in their possession for all purposes. This is in the Talmud on… we’ll see later. Since they took it out, it is theirs. So what happens? Notice: if the bandits took it out and then it caused damage, they become liable not because then it suddenly turns into actionable causation or one of the various categories of indirect causation. No—they simply become like owners. It stands in their possession for all purposes. They acquired it. Once they acquired it, they are liable as one whose property caused damage. Okay? Later they discuss “they struck it and stood it in front of…,” placing another person’s animal upon another person’s grain—we’ll see that Talmudic passage later. But one has to understand that the discussion about the bandits and the discussion about the owner are different discussions. Meaning, when the bandits breached it, the owner is exempt not because he is an indirect cause or an actionable cause or anything like that. He is exempt because he guarded properly. What could he do if the bandits came and breached it? He locked it properly. The bandits are exempt by the law of indirect causation, and therefore they are exempt. What happens when they took it out? Seemingly… they are still only indirect causation. They took it out, but from that point onward the animal decided to go cause damage. So it’s still indirect causation. True, but after they took it out, they acquired it, and that is the Talmud’s initial assumption later—we’ll get into that more later—it becomes theirs, and once it becomes theirs they are liable as one whose property caused damage. Once again, we have already gone out of the category of indirect causation. It has nothing to do with the category of indirect causation. We have returned to the novelties that apply to owners themselves.

[Speaker B] Does that mean they have to have done some act of acquisition for it to be in their possession—pulled it or something like that?

[Rabbi Michael Abraham] In principle, yes. Some kind of acquisition.

[Speaker B] And if they only caused it to go out by beating it or things like that, where that’s not an act of acquisition?

[Rabbi Michael Abraham] “They struck it and stood it in front of…” That’s what the Talmud there discusses. At least in the first stage they are really talking about an actual acquisition. Again, it’s an acquisition in the sense at least of the acquisitions of robbery, and the acquisitions of robbery aren’t exactly the same as ordinary acquisitions. But fine, all that we’ll deal with later. Tosafot on “it was breached at night”: even though it teaches, “he locked it properly before them—he is exempt,” Tosafot asks, so what’s the novelty? It says that if he locked it properly before them, he is exempt. Was it necessary to teach that if it was breached at night he is also exempt? So why do I need to be told that if it was breached at night he is also exempt? It’s obvious—he locked properly. Once he locked properly, he is exempt. What novelty is there in saying that it was breached at night? So Tosafot says that it still needed to say this, in order that one can infer in the first chapter—by the way he adds, “it was breached at night.” You see? “It was breached at night,” look here: “it was breached at night or bandits breached it.” Why specifically at night? So he says like this: in order to infer in the first chapter that by day he is liable, because the matter has publicity, and presumably he knows it was breached. Meaning, if it was breached by day, then at some point a person hears that the door to his animal enclosure was breached, and he is supposed to go and fix the matter. Once he heard and didn’t do it, and then the damage occurred, then the responsibility is again on him—not connected to indirect causation and things like that, but the responsibility of a person who causes damage. True, you locked properly and it was breached on its own, but if it was breached by day then the assumption is that you should have heard about it, and if you didn’t do what was needed, then you are once again someone who did not guard his property and therefore you are liable. That is the novelty of the Mishnah: if it was breached at night, when he presumably doesn’t hear about it, then the fact that he originally locked properly exempts him. It was breached—what can he do? Tosafot gives a second answer: alternatively, at night, even if he became aware that it was breached and the animal went out, he does not have to trouble himself excessively to chase after it in the dark. What is he saying? The second answer says: if he became aware that it was breached at night—the assumption of the first answer is, what would the law be according to the first answer if he became aware that it was breached at night? Obviously he needs to go and close it. Right? The whole assumption is simply that at night he doesn’t know.

[Speaker C] But if he did know, then—

[Rabbi Michael Abraham] Then he would have to go close it, or look for it and make sure it doesn’t cause damage. According to the second answer, no. At night he is exempt even if he became aware. Why? Because a person doesn’t have to get out of bed and chase after his animal or close the door, start working there in the middle of the night. He did what he needed to do—he locked properly—and therefore he is exempt. Now it’s clear here—why am I bringing this? Because it sharpens much more, at least the second answer of Tosafot sharpens much more, the point I made earlier: that the discussion regarding the owner is not connected to the question of how direct or indirect his involvement is. It is not a question of indirect causation, actionable causation, or direct action, or whatever it may be. The question is simply whether he fulfilled his duty. Once he locked properly, he fulfilled his duty. The question over which Tosafot’s answers disagree is what happens after he fulfilled his duty: it was breached not through his fault, but he became aware of it—he became aware that it was breached. Does the duty return to him, and now once again he is considered as one who did not fulfill his duty? By day, certainly yes. But at night, the first answer says that if he heard about it, his duty to lock returns, and if he didn’t lock, then he is liable—but generally at night one doesn’t hear. The second answer says no: since it is burdensome to get up, and after all he did what he was supposed to do—he locked properly—so what can be done, why should he bear the consequences for something he did not cause? Therefore in such a situation they did not impose on him the burden of locking. By the way, this fits a bit better with the approach that says negligence in guarding is what obligates, rather than responsibility. Because plainly, if the liability is responsibility, then responsibility is imposed on you for whatever your animal does, as long as you were not under compulsion. And here you were not under compulsion. One could perhaps say, with some strain, that if you are asleep at night they did not require you to get up, and from the perspective of the Sages that too is considered compulsion. Maybe. I don’t know. But it seems to me easier to understand according to the first approach—the approach that says negligence in guarding is really what obligates. I’m just reminding you that in Even HaEzer, in the previous lecture, we saw that in Even HaEzer he brought the example, the practical difference between these two sides as to why one is liable for damage caused by property: whether it is negligence in guarding or responsibility for the property that caused damage. So if you remember, he brought there as a practical difference—and I said I’m not sure I agree with him—the case of an animal that was guarded, but not by the owner. The owner himself was negligent, didn’t guard properly, but some neighbor came and locked the door. And now the animal went out and caused damage. So there was negligence in guarding here, but on the other hand the animal was guarded—it’s not that the animal wasn’t guarded. And I said there that one can understand the practical difference in both directions; we won’t go back to that here. I only want to draw your attention to the fact that the case appearing here is the opposite. Meaning, there he spoke about a situation in which the owner didn’t do what he needed to do, but someone else came and guarded in his place. Here we’re speaking about the owner having done what he needed to do—he locked properly. Someone else came and broke the fence for him—not for him, but for his animal. The question is whether that re-establishes the responsibility that the owner has. Seemingly the opposite situation, and something like the practical difference we saw there appears here, just in the opposite direction. And I said that here too this is not a conclusive practical difference. Another point worth noting here is that the liability of the bandits and the liability or exemption of the owner are not connected to each other. And I think this is connected to what I said earlier. Meaning, the question whether the bandits are liable or not liable is not connected to the question whether the owner is liable, because one might have said: if the bandits are liable, then the owner is exempt because there is already someone who pays; and conversely, if the owner is liable, then the bandits are exempt because there is already someone who pays—not because of an exemption of indirect causation or something like that, but because there is already someone responsible; there’s no need to pay, the damage is covered. That would be an exemption from payment, not an exemption from your own responsibility. But here in the Mishnah and in the Talmud we see not like that. Rather, we see that the exemption of the owner and the exemption of the bandits are not connected at all. The owner is exempt or liable according to whether he did what he needed to do—whether he locked properly, whether he should have known, whether he could have known, night, day, Tosafot’s answers, everything we saw—but none of that is connected at all to the question of how much the blame falls on the bandits. Nothing at all. We are simply discussing whether the owner is liable or exempt. This is a discussion about his responsibility for his property, not within the categories of indirect causation; it is the liability of one whose property caused damage. As for the bandits, the discussion is only within the categories of indirect causation and is not really connected to the owner’s liability. Therefore there can be a situation in which both the bandits are exempt and the owner is exempt. The exemption does not come from the fact that someone else is paying. Each of them is exempt for the reasons relevant to him. I bring this in order to sharpen even more what I said earlier: that the discussion about the owner and the discussion about the bandits are two independent discussions. The discussion about the owner has to examine whether in such a case you have responsibility for what your property caused. And the discussion about the bandits is a question of indirect causation in damages—or, if they pulled it and acquired it, then of course they become owners—but for now let’s talk about before they pulled it, when they breached the door. Since these discussions are independent, there really can be a situation where both sides are exempt. The interesting question will be what happens if both sides are liable. For example, the owner put up a rickety wall, so he didn’t guard properly, and the bandits broke through the wall. So basically there was negligence on the owner’s part too. In principle there would be room to obligate him as well. On the other hand, the bandits themselves ultimately may also have caused the damage, at least as indirect causation that is liable in the judgment of Heaven. The question is what to do with that. Here there is room for hesitation, because if we reach the conclusion that independently each of the two causes is liable—both the owner and the bandits—then we need to see what we do with it. The injured party won’t be paid twice. Fine, we need to examine it. It could be that the owner pays the injured party and the bandits have to reimburse the owner, or that they split it fifty-fifty, or I don’t know—one can raise various possibilities. That already connects to the question of two people who together caused damage. I’m not entering that here. But in principle I just want to say that the discussion about the owner and the discussion about the bandits are not connected to each other. Okay, now let’s enter our Talmud passage regarding one who breaks a fence before another person’s animal. The Talmud asks a surprising question: The master said, one who breaks a fence before another person’s animal—what are the circumstances? If you say it is talking about a sound wall, then he should be liable even in human law. So what was the case there? Was it talking about a sound wall, an ordinary wall, a proper wall? Then the one who broke it should be liable even in human law? So the Talmud answers that it is talking about a rickety wall. Okay? That is more or less the move. Now, the Talmud’s first question is a very strange question. What does it mean, “if you say it was a sound wall, then he should be liable even in human law”? Is it reasonable that with a sound wall you would obligate the one who broke it even in human law? That is contradicted by the Mishnah. In the Mishnah it says that bandits breached it. Bandits breached it?

[Speaker B] If bandits breached it, he is exempt.

[Rabbi Michael Abraham] True, it doesn’t say that bandits are exempt. It says that he is exempt. But we inferred from the continuation that if bandits took it out, then they are liable. Which implies that if bandits merely breached it, then not only is the owner exempt, but the bandits are exempt too. So then we see that someone who breaks down a fence in front of another person’s animal—even with a sound wall, we’re not talking there about a shaky wall—with a sound wall he is exempt. Unless we make an interpretive restriction and say that the Mishnah too is talking about a shaky wall. That’s strange. The Talmud at least doesn’t make that restriction in the Mishnah. It makes that restriction in Rabbi Yehoshua’s list regarding one who breaks a fence in front of another person’s animal, who is exempt in human courts and liable by the laws of Heaven; there they make the restriction that this is a shaky wall, because with a sound wall he should have been liable—liable in human courts. And what about the Mishnah? So there too we’ll make the restriction that it’s a shaky wall, and with a sound wall the bandits really would be liable? That brings us back again to the discussion I mentioned earlier: if that were really the case, then maybe there would be room to restore the connection between the liability of the bandits and the liability of the owner of the house. Because what is the difference between a shaky wall and a sound wall? As I said earlier, with a shaky wall the owner was already negligent. If the owner was negligent, then there is room to discuss what happens with the bandits. So the bandits may be exempt in human courts, liable by the laws of Heaven, but exempt in human courts. But with a sound wall there’s no basis to obligate the homeowner, because he locked it properly, he guarded it as he should have. So if bandits now come and break in, why should we exempt them? The only reason I exempt him is because there’s someone else who is liable. But here the homeowner, who did what he had to do, is not liable, because it’s a sound wall. In a case like that maybe we really would obligate the bandits. But as I said, all of this is not the plain meaning of the Mishnah; it isn’t right, because as I’ve been inferring the whole way until now, there is no connection between the discussion of the bandits and the discussion of the homeowner. The exemption of the bandits is not because the homeowner is liable. The exemption of the bandits is an exemption under the laws of indirect causation.

[Speaker B] Besides, that would mean we’re holding them liable for indirect causation. Those bandits who breached it—that’s indirect causation; it’s not that they did direct damage.

[Rabbi Michael Abraham] You could say that with a sound wall it’s not indirect causation but direct-but-mediated damage. Only with a shaky wall is it indirect causation. Because, for example, the damage is foreseeable. It depends on what your criteria are for the difference between direct-but-mediated damage and indirect causation, but later we’ll see such a possibility. But one could have said that this doesn’t fall under the exempt category of indirect causation at all; maybe it’s direct-but-mediated damage, maybe it’s even more than that. But I’m saying, on its face this Talmudic passage is a very strange passage. I mean, it’s not only that it says something that contradicts the Mishnah; it also raises an objection against Rabbi Yehoshua, where the objection assumes an assumption contradicted by the Mishnah. Meaning, not only can’t you say that, not only did the Gemara allow itself to say such a thing even though it contradicts the Mishnah, it is astonished at Rabbi Yehoshua for saying otherwise. What exactly is the Gemara’s astonishment? It goes against the Mishnah. Fine, so we’ll see this in the medieval authorities (Rishonim). In any case, the Gemara concludes that it is talking about a shaky wall. Okay? So with a shaky wall, basically the bandit is exempt in human courts and liable by the laws of Heaven. Why? Because it’s indirect causation. And then of course the question comes up that Doron really raised earlier: what happens with a sound wall? So with a sound wall it’s not indirect causation? Seemingly there is no difference between the shakiness of the wall and the soundness of the wall with respect to your definition of indirect causation. It may be relevant regarding the owner’s liability. With a shaky wall, the owner didn’t guard properly; you can say that I exempt the bandit or the breaker because the owner didn’t guard properly, so I am basically obligating him, and therefore I have no reason to obligate the bandit. With a sound wall I do not obligate the homeowner, therefore I can obligate the bandit. But then the whole discussion is about whether the owner is liable, and the bandit’s liability is only derivative. It’s not a question in the laws of indirect causation. But from the Gemara it sounds—and that’s also how it seemed in Rashi earlier—that the discussion here is an exemption under the laws of indirect causation; it isn’t connected to whether the owner became liable or not. So if it isn’t connected to the owner, then what difference does it make whether this is a shaky wall or a sound wall? In both cases this is indirect causation. As I said earlier, there is a possible resolution, but I’m raising again the question Doron asked, which is definitely a natural question here. Now later on, I mentioned to you that in the continuation the Gemara brings necessity arguments to explain why these four cases had to be mentioned. And for each of the cases the Gemara says there was a possible initial assumption—to exempt him even by the laws of Heaven. It comes to teach us that he is not exempt by the laws of Heaven, only in human courts. In the case of one who breaks a fence in front of another person’s animal, the Gemara says as follows: one who breaks a fence in front of another person’s animal—what might you have said? They are coming to explain why this had to be included in Rabbi Yehoshua’s statement. What might you have said? Since it was destined to be demolished, what did he do? So perhaps he should not be liable even by the laws of Heaven. It comes to teach us otherwise. That is, a shaky wall really ought to be demolished because it is dangerous; it could fall and cause damage. So therefore it is standing there to be demolished. So when a person comes and breaks a shaky wall in front of another person’s animal, there would be room to say that we should not obligate him even by the laws of Heaven. Why? Because he basically did what in any event had to be done; he demolished the wall so that the wall would not cause damage. The fact that afterward the animal caused damage—fine, what can you do? But I needed to demolish the wall so that it would not cause damage, and therefore there was an initial assumption that he should not even be liable by the laws of Heaven. It comes to teach us that he is. That of course strengthens even more the question Doron asked earlier, because basically we see that the whole discussion here is a discussion of how far my act is considered an act that creates liability. It does not depend on the question whether the homeowner is liable or not liable. Rather, there was an initial assumption to exempt me by the laws of Heaven because in any case this wall needed to be demolished. So with a sound wall there is no initial assumption to exempt me, and therefore clearly I would be liable by the laws of Heaven—but why in human courts? With a sound wall, and in human courts this is still indirect causation, so why obligate him in human courts? Okay, Rashi here on the spot of course senses this difficulty and says something that on its face seems very forced. “The breaker”—first of all, Rashi says as follows: “one who breaks a fence”—notice—“and the animal went out and ran away.” What is that? So simply, “the animal went out and ran away” means not that the animal went out and caused damage, but that I caused damage to the owner of the animal because he lost his animal. Or in other words, Rashi shifts the whole discussion from a discussion of damages done by the animal to a discussion of the damage caused to the owner of the animal by the fact that the animal ran away from him. We are not talking about the animal, after it ran away, causing damage. In the Mishnah we are talking about damages caused by the animal. If bandits breached it, the homeowner is exempt. Exempt from what? It makes no sense to exempt this homeowner because his animal ran away; if his animal ran away then he lost out—what is there to exempt him from? Clearly the discussion in the Mishnah is a discussion of damages the animal caused. And when it says that if bandits breached it, the homeowner is exempt, and also the bandits are exempt, the meaning is that they are exempt from the damages the animal will cause after it goes out. Rashi here, for some reason—and we have to understand why—but Rashi here for some reason chooses to explain the Gemara as about the loss of the animal, not about damages the animal did. The question is whether I am considered a damager because I broke the fence and the animal went out. Fine, so now we have to continue understanding how this Gemara works from here on.

[Speaker C] That’s what the Gemara says—maybe what he means, maybe Rashi says “and it ran away” not in order to say what you said, but in order to say that it wasn’t that the bandits led the animal out by pulling it, but that it—

[Rabbi Michael Abraham] We’re still talking here about damages the animal did; he is only excluding other scenarios, other possibilities that would make the animal go out. I don’t know. I think the straightforward reading of Rashi is not that, but it is a possibility; I also thought of it. Usually people don’t learn Rashi that way, but in principle that possibility exists. Look at the continuation of Rashi; maybe it will strengthen this even more. “If it is a sound wall, then he should be liable in human courts as well?” Rashi says: “At least for the wall, for he destroyed it with his hands; but about the animal one cannot say that he is liable, for we learned: if bandits breached it, he is exempt.” Rashi says that in the Gemara we asked: if it is a sound wall, why does the Gemara assume he is liable even in human courts? After all, this is exactly like “if bandits breached it.” Rashi says: correct, for the animal’s damages he will be exempt; here we are talking about his liability for the wall. Meaning, for the wall—he destroyed the wall, and for that he will be liable in human courts. That is what the Gemara asks: “If it is a sound wall, then he should be liable in human courts as well,” meaning for the wall. For the animal, truly not. And then Rashi tells us that for the animal’s damages, whether with a sound wall or a shaky wall, the one who breached the wall will not be liable in human courts; this will be indirect causation, exempt in human courts and liable by the laws of Heaven. And what the Gemara says here, that in human courts we would obligate him, means only for the wall. Therefore the Gemara says the law itself is a correct law: one who breaks a fence in front of another person’s animal, with a sound wall he really is exempt in human courts and liable by the laws of Heaven—but in Rabbi Yehoshua’s wording, where it says “exempt in human courts” with no qualification, it doesn’t sound as though he was speaking that way, because he should have indicated that at least for the wall he does have to pay in human courts, and he did not indicate that. So it comes out looking as though everything is exempt. But regarding the exemption for the animal, that really is the correct law, and there is no difference between a sound wall and a shaky wall, exactly as is proven by the Mishnah. Meaning, it is completely clear what forces Rashi here to explain it this way, that it is talking about the wall. What forces him is the difficulty I asked earlier from “if bandits breached it” in the Mishnah, because “if bandits breached it” in the Mishnah means the bandits are exempt unless they took it out, because it is indirect causation. And there, simply, we are also talking about a sound wall, not only about a shaky wall. Okay? And therefore Rashi says there is no choice but to say that the Gemara here, when it says he is liable in human courts, is speaking only about payment for the wall, not about liability for the animal’s damages. But this is a separate issue from the question whether we are talking about an animal that caused damage or an animal that was itself harmed—“harmed” meaning, that it was lost to its owner. I said that this strengthens even more the suggestion raised here earlier, because really if Rashi is indeed speaking about the loss of the animal itself, not about the animal going and causing damage, but the loss of the animal, then perhaps he could also have resolved the difficulty from the Mishnah that way. Why—meaning, Rashi has two novelties here. One novelty, apparently, is that we are talking here about an animal that was lost, not about an animal that caused damage. And the question is whether the one who breaks the fence must pay the owner for his animal that was lost to him. That is one novelty—which we said parenthetically, maybe Rashi does not mean that, but that’s how one reads him on the straightforward level. A second novelty in Rashi is that what is written in the Gemara—“if it is a sound wall, then he should be liable in human courts as well”—refers to liability for the wall, not for the animal’s damages. Now, the second novelty is clear to me why Rashi was forced to say it; he himself writes: about the animal, you cannot say he is liable, because after all, if bandits breached it, the Mishnah says they are exempt. Right? But that is talking about the damages done by the animal. But if here we are talking about the animal itself that was lost to the owner, then who says? Maybe indeed when I breached the wall I am liable for what happened to the owner whose animal ran away. What is written in the Mishnah is that I am indirect causation with respect to damages the animal will cause—that the animal will go on to do damage later. For that I am considered indirect causation. But maybe here, with respect to the loss of the animal itself, here I would indeed be liable. Why divide?

[Speaker B] What? Why would we divide between them?

[Rabbi Michael Abraham] I don’t know, I don’t know. But you see in the text—we’ll still talk about the underlying reasoning—but I answered you earlier regarding the reasoning, for example the difference between indirect causation and direct-but-mediated damage. But in a moment—I’m leaving that aside for the moment, because we’ll get to it later. I’m just saying, notice that the difficulty from the Mishnah to the Gemara, which forces Rashi to say we are talking about liability for the wall and not for the animal, is actually a difficulty built on the assumption that the case of the Mishnah has to be compared to the case of the Gemara. But if the case of the Mishnah really speaks about damages the animal did, and the Gemara speaks about damages caused to the owner of the animal by the fact that he lost his animal, there would be room to say that the second difficulty does not exist. Because what the Mishnah says you are exempt from is damages caused by the animal, and what is written here—that with a sound wall you are liable in human courts—is because here we are dealing with the loss of the animal itself, and for that you would be liable. So I’m saying: one can adopt the suggestion raised here earlier, that really Rashi does not mean to say that we are speaking about the loss of the animal. He is only saying that the animal ran away, to exclude a case where the bandits led it out, but in essence we are talking here about damages caused by the animal. And then of course the second novelty is obvious, because otherwise there is a contradiction between the Gemara and the Mishnah. You have to say it’s talking about the wall. If I nevertheless read Rashi literally, that it is speaking about the loss of the animal and not about damages the animal did, then we need to assume that Rashi apparently understands that there is no basis at all to distinguish between damages the animal causes and the damage I caused the owner by the fact that the animal ran away. If the Mishnah says that regarding damages the animal does I am considered indirect causation, then with regard to the loss of the animal too I am considered indirect causation, and therefore Rashi compares the Mishnah to the Gemara and is forced to say that here it is specifically about the wall. But then I need to understand: if so, what made Rashi explain “the animal went out and ran away”? Meaning, I can understand why he brings proof from the Mishnah, because he thinks there is no difference between the animal’s damages and the damage involved in the loss of the animal itself, but then the question returns: why did he force himself here to explain it as talking about the animal being lost rather than the animal causing damage? Okay? Which again strengthens the suggestion raised here earlier—that maybe Rashi really means to say the animal caused damage. All right, let’s take a short break for a few minutes, four or five minutes, and then we’ll continue. Why didn’t you play in the virtual? I was in debt.

[Speaker D] Did he already buy shoes from you? Don’t get excited. He didn’t answer. This stage could have ended. Dad, Dad, Dad, come here a second, come here a second, come here a second, come here, come here, come here, Dad. Wow, bastard. I can’t—

[Speaker F] hear this. There’s a judge.

[Speaker E] Dudi, Dudi,

[Speaker F] Dudi, Rubi, Rubi, Rubi, Dudi. What? You hear? I think we’re done. Some plane in the air, bomb. Okay,

[Rabbi Michael Abraham] We’re back, friends. Come on, turn on your cameras, return to the enduring strength of the Torah. Okay, one more comment. I mentioned earlier: what happens with a shaky wall in terms of the owner’s liability? So this is just to complete the picture. Page 56a, immediately after our passage: “If it was breached at night or if bandits breached it,” Rabbah said: and that is when it tunneled through. But if it did not tunnel through, then what—he is liable? What are the circumstances? If you say it is a sound wall, then if it did not tunnel through, why should he be liable? What could he have done? A person who had a sound wall can’t be held liable; what could he do? He guarded properly. Rather, it is a shaky wall. Then if it tunneled through, why is he exempt? This is a case of beginning in negligence and ending in an unavoidable accident. So what do we see? That a shaky wall is called negligence. There was room to discuss whether a shaky wall counts as negligence on the part of the original owner. The answer is yes. But if that is so, then it is not clear why later in our passage they nevertheless obligate the breaker. One who breaks a fence in front of another person’s animal—with a shaky wall they obligate him by the laws of Heaven and exempt him in human courts. In such a case the owner himself, with a shaky wall, the owner himself was negligent. Right? Because he put up a shaky wall. What happened in the end is that someone broke that wall, but there was negligence on the owner’s part. The question is whether in such a case the owner really would be liable or not.

[Speaker B] Seemingly yes, because he was negligent. And this is again beginning in negligence and ending in an unavoidable accident, no?

[Rabbi Michael Abraham] Even if afterward—yes, although here one has to hesitate a bit, because this unavoidable event is the act of another conscious person. It’s not just some unavoidable act caused from Heaven.

[Speaker B] And he couldn’t have imagined it; for him it’s an unavoidable accident. From the owner’s standpoint it’s considered an unavoidable accident.

[Rabbi Michael Abraham] No, the opposite. The reason that according to the one who says “beginning in negligence and ending in an unavoidable accident” one is liable, here he would still be exempt. Because here the unavoidable event is not an unavoidable event from Heaven. If it were an unavoidable event from Heaven, then I would be liable because after all I was negligent at the beginning. In Jewish law, “beginning in negligence and ending in an unavoidable accident” is liable. But here, since there is another factor that entered and it is that factor which caused my unavoidable event, then he basically coerced me, so he did it, not I. And because of that I am exempt. Just note that he too is liable only by the laws of Heaven, not in human courts. Right? After all, that is what our statement was said about: one who breaks a fence in front of another person’s animal is exempt in human courts and liable by the laws of Heaven, and according to the conclusion this was said about a shaky wall. So with a shaky wall, the breaker is liable only by the laws of Heaven, not in human courts. And then a very interesting thing comes out: I, even though I was negligent because I made a shaky wall, am exempt. At least that is how it appears that I am exempt, right? After all it says, “if bandits took it out”—fine, “if bandits took it out,” maybe that is with a sound wall. But in our Gemara, where it says about one who breaks a fence in front of another person’s animal with a shaky wall, that he is exempt in human courts and liable by the laws of Heaven—and the owner himself is liable? Because of beginning in negligence and ending in an unavoidable accident? On the straightforward reading I would have learned that the intent is only the liability of the breaker, which is liability by the laws of Heaven. The owner himself has no liability at all. Why? But he made a shaky wall; he did not guard properly. So here we probably have to say that he would argue: true, I was negligent, but who says that my negligence brought about the unavoidable event that happened in the end? It could be that the animal would not have gone out even with a shaky wall; only because that other person breached the wall did it go out. You cannot prove that I bear blame because of my negligence, and when there is no connection between the negligence and the unavoidable event, one is not liable under “beginning in negligence and ending in an unavoidable accident”—even when I was negligent at the beginning. And if it died in its normal way, it had a heart attack, I don’t know exactly what—then I’m exempt. Why am I exempt? After all, in the end I was negligent; I left the door open. Clearly the negligence in and of itself does not obligate me; the negligence merely prevents me from exempting myself from paying for what happened. But if there is no payment obligation for what happened, then the fact that I was negligent is irrelevant. There is one opinion, that of the Rif in Abaye’s view, that says that even if there is no connection between the negligence and the unavoidable event, one is liable. And that opinion, as Rabbi Akiva Eiger explains, indeed assumes that one is liable for the negligence itself; nothing even has to happen. Only if something happened—if nothing happened, sorry—you simply take the animal itself and return it as your obligation. But you are still liable by virtue of the negligence itself. It’s only if something happened, and the animal is no longer there or was damaged or something like that, and now you cannot return the animal itself because something happened to it, then you have to pay. But the obligation to pay is for the negligence. That is of course a much more extreme conception than what I said earlier, that negligence in guarding creates liability only for damage. Meaning, earlier I said there are two possibilities: either it is responsibility for what my animal does, or it is a claim against me because of negligence in guarding. Now I’m presenting an even more extreme approach. I am saying that negligence in guarding itself creates liability; you do not need the damage at all in order to become liable. The moment there was negligence in guarding, that is itself the reason to obligate you. But that is not the accepted Jewish law ruling; that is only the Rif in Abaye’s view, and in any case it is not the accepted ruling. Fine, so I return to our passage. Tosafot on our passage—we saw Rashi’s approach. Rashi apparently says—I don’t know, it’s uncertain, but apparently—that he is speaking about an animal that ran away and not an animal that caused damage, and he says that with a sound wall, “liable in human courts” means liable for the value of the wall in human courts, but for the animal’s damages he is exempt, as we see in the Mishnah with “if bandits breached it.” Tosafot also bring Rashi and spell him out a little more. “If you say it is a sound wall, then he should be liable in human courts as well?” Explanation: for the wall. “For regarding the animal he is certainly not liable for merely breaching the fence, because that is only indirect causation.” And there are versions in which it explicitly says “for the wall.” Meaning, there are those who have that reading outright. Tosafot ask: and if you say, granted that he is liable for the wall, let us say that “exempt in human courts” refers to the animal. So what are you telling me? That what is written—“exempt in human courts and liable by the laws of Heaven”—the Gemara says that can’t be, because after all for the wall he should be liable. So say: fine, what is written, “exempt in human courts and liable by the laws of Heaven,” is about the animal and not about the wall. Really for the wall he is liable all the same. So why does the Gemara, on the basis of that claim, reject the possibility that we are talking about a sound wall? Tosafot say: because it is not appropriate to teach “exempt in human courts” if there is any liability at all, whether for the animal or for the wall. You can’t say “exempt in human courts” without noting, yes, but for the wall he will have to pay. Apparently “exempt in human courts” means exempt entirely. And then that is only with a shaky wall. But again, all this is only in terms of wording. Legally, Tosafot really say, even with a sound wall he is exempt in human courts and liable by the laws of Heaven for the animal’s damages; and the only reason the Gemara does not like to explain it that way is because for the wall he should be liable in human courts. Tosafot continue: “But when it answers: with a shaky wall—even though it does not seem that he would be liable by the laws of Heaven for the wall, since it is so shaky that it would fall in a normal wind or even in an unusual wind, nevertheless it is appropriate to teach ‘liable by the laws of Heaven,’ since there is something for which he is liable, namely the animal. Now it works out well.” What is he saying? He says it isn’t symmetrical. With a shaky wall too, you are telling me—with a shaky wall he says: if the wall is shaky, then why should he be liable by the laws of Heaven? After all, this wall is worth nothing; basically it would collapse in the wind, even in an unusual wind he says, though certainly if it would collapse in a normal wind. So why am I liable by the laws of Heaven? He answers: “liable by the laws of Heaven” is speaking about the animal. That is what Tosafot say. Really, for the wall he would not be liable. And then he asks—again, all this is in the subtext—then what about what I asked above: if there is one thing you are exempt for and one thing you are liable for, you can’t just say “exempt,” right? You should have noted that there is also something for which he is liable, namely the value of the wall. He says: yes, but that is only in the direction of exemption, not in the direction of liability. Because if we say that he is liable by the laws of Heaven, it is enough that he is liable by the laws of Heaven for the animal, even if he is exempt by the laws of Heaven for the wall; you can still say “liable by the laws of Heaven.” To say “exempt in human courts,” you can’t say that if there is something for which he is liable. But if there is something for which you are liable and something for which you are exempt, you can say “liable” without noting that there is something else for which you are exempt. Yes, there is an asymmetry here. But from Tosafot’s words we learn that with a shaky wall, if a person broke it, we have gone back to discussing the animal—you are liable for the animal’s damages, basically. Exempt in human courts and liable by the laws of Heaven. And what about the wall? For the wall you are exempt even by the laws of Heaven. Tosafot ask—it’s a little difficult in light of the Gemara we saw later, right? Tosafot ask—yes, afterward he says: “And now it works out well that it says ‘in front of another person’s animal’ and not ‘one who breaks another person’s fence,’ because for the wall he is not liable, as I explained.” Right, after all it says in the Mishnah, in Rabbi Yehoshua’s statement, “one who breaks a fence in front of another person’s animal.” If the whole discussion were about the wall, then why say “in front of another person’s animal”? Just say “one who breaks another person’s fence.” Who was talking about the animal? What does the animal have to do with this now? We are talking about liabilities for the wall. Tosafot say: clearly that is not right; we are talking here about liabilities involving the animal, not liabilities involving the wall. And when it says “exempt in human courts and liable by the laws of Heaven,” that means the animal all the way through, both in the initial assumption and in the conclusion. When it says “exempt in human courts and liable by the laws of Heaven,” it is said about the animal. The Gemara only asks: if it were a sound wall, then it should also have added a parenthetical note that for the wall he is liable in human courts. The discussion the whole time is about the animal, clearly only about the animal. But it should have added a parenthetical note that he is liable for the wall, liable in human courts; you can’t simply say “exempt in human courts” when there is something for which he is liable. By contrast, that is with a sound wall. With a shaky wall, then yes, in human courts he is not liable at all; by the laws of Heaven he is exempt for the wall and liable for the animal’s damages. So why can one say “liable by the laws of Heaven” if for the wall he is exempt? He says: yes, because for the animal he is liable by the laws of Heaven, and that is enough; it is enough that there is one thing for which he is liable by the laws of Heaven. And for our purposes, basically what Tosafot says—the resulting laws, if I had to write the Shulchan Arukh now in light of Tosafot—what would I say? I would say like this: one who breaks a fence in front of another person’s animal—if this is a sound wall, then for the animal’s damages he is exempt in human courts and liable by the laws of Heaven; for the wall he is liable in human courts. If this is a shaky wall, then for the animal’s damages he is exempt in human courts and liable by the laws of Heaven, exactly as with a sound wall; and for the wall he is completely exempt, even by the laws of Heaven he is completely exempt. Meaning, everything said here about a shaky wall is only so that there will be nothing at all for which you are liable, not even for the wall. There is no problem establishing it also as a sound wall with respect to the laws regarding the animal, which are after all what we are dealing with. The problem is only a side problem. It is very strange. It is strange to say that Rabbi Yehoshua spoke about a shaky wall when the whole novelty he came to say was not about the wall; it was about the animal. Because what he said—“exempt in human courts and liable by the laws of Heaven”—is not true regarding the wall. With a shaky wall he is not liable even by the laws of Heaven. So clearly the whole novelty he came to say is only about the animal. So if the whole novelty is only about the animal, then why establish it as a shaky wall? After all, the novelty regarding the animal is true even with a sound wall. This whole interpretation of Tosafot is an extremely strange and very unlikely interpretation. After that he says as follows: “And as for what it says later, ‘what might you have said? Since it was destined to be demolished, what did he do?’” Yes, the wall is standing there to be demolished, so what did he do? That implies that “liable by the laws of Heaven” refers also to the wall. And the Gemara later says: why was this law brought? Because there was an initial assumption to exempt him even by the laws of Heaven because the wall was destined to be demolished; therefore they brought this statement in order to tell you no, that he is liable by the laws of Heaven. So we see that the liability by the laws of Heaven is speaking about the wall, not only about the animal. That seems directly against what Tosafot said above. “One can say that this is what it means: since it was destined to be demolished, because the owners are commanded to demolish it so that it should not fall on people, you might have thought that whoever first performs the commandment gains the merit, and this one has no obligation to refrain from demolishing it for the sake of another person’s animal, and therefore he should not be liable even by the laws of Heaven. It comes to teach us otherwise.” What is he saying? For the wall they really are exempt in any case. But since the wall was destined to be demolished, there was an initial assumption to exempt him by the laws of Heaven even from the animal’s damages. Since after all he did a great commandment by destroying the wall. And once he destroyed the wall, well, he did something good—what is he guilty of if afterward there is another person’s animal that someone had put behind a shaky wall? So why should he be liable even by the laws of Heaven regarding the animal? There was an initial assumption that for the animal too he would be exempt by the laws of Heaven. Alternatively—well, there is a Tosafot in Sanhedrin that brings this in more detail, discussing the relation between murder and damages. So he says: “And if you ask, that which we say at the beginning of chapter HaKones, one who breaks a fence in front of another person’s animal is exempt in human courts and liable by the laws of Heaven—and it asks: what are the circumstances? If it is a sound wall, then in human courts too he should be liable? What kind of question is that? There, in the case of removing a shield where he is exempt—it is talking about a murderer where there is a shield there and someone removes the shield—and it seems to explain that it refers to the wall, and thus the question is: in human courts too he should be liable for the wall. And there are versions in which it explicitly says ‘for the wall,’ just like Tosafot here. And know that we learned there: if bandits took it out, the bandits are liable. And in the Gemara we establish that this is when they drove it with a stick. This implies that otherwise they are not liable even though bandits breached it.” Yes, we saw that. “However, it can be rejected, because the Mishnah is talking about liability for damages, but for the loss of the animal he would be liable.” What is that? Tosafot here bring a possibility that in the Mishnah, what it says—“if bandits breached it,” from which we see that the bandits are exempt—means exempt from damages the animal will cause. But for the loss of the animal itself, if someone breaches the fence in front of it, he would be liable. This really sounds like Rashi here, right? Who establishes our case, our discussion, as being about the animal being lost, not about damages caused by the animal. What really is the difference? This goes back to Doron’s question earlier: what really is the difference? Because basically let’s say this: according to this “however, it can be rejected” in Tosafot in Sanhedrin, he basically explains like Rashi—that here we are talking about the loss of the animal and not the damages caused by the animal. And why does he explain it that way? Exactly because of the contradiction between the Gemara and the Mishnah. In the Mishnah we see that the bandits who breached it are exempt; that speaks about damages caused by the animal—there it is clear that we are talking about damages caused by the animal. Here, when it says that with a sound wall the one who breached it is liable, it means for the loss of the animal—that is what he is liable for. What is the difference between this and that? I assume the difference is the directness of the causation, whether it is indirect causation or direct-but-mediated damage. And then what?

[Speaker B] Meaning that with respect to the loss of the animal, by his breaching the wall it gets very, very close to direct action, right? That’s what makes it direct-but-mediated damage, let’s say.

[Rabbi Michael Abraham] But with regard to damage the animal caused, then no. It’s clear that that’s more indirect, because the damage the animal caused— it went outside, it could have caused damage, it could have not caused damage— that’s more indirect. Yes, that’s clear. So here another possibility basically comes up, a possibility to say, like Rashi, that we’re talking about the loss of the animal, okay? But not like Rashi later in his comments. Because after all, I said that if I adopt Rashi’s words, if I explain Rashi to mean that we’re talking here about the loss of the animal and not the damages it caused, then there’s no need to transfer this to liability for the wall. The whole discussion is about liability for the animal, where it says, “If we are dealing with a sound wall, then in human law he should also be liable”— the meaning is, he should be liable for the loss of the animal. You asked me from the Mishnah that if bandits broke in, they are exempt? That’s about the animal’s damages, not about the loss of the animal. And that’s it. There’s no need to start all these forced explanations that this is about the value of the wall and all the pilpul of Tosafot that we saw above, Tosafot here. That is basically the approach I would have expected according to Rashi. And if Rashi explains that we’re talking about the loss of the animal and not its damages, the reason to explain it that way is exactly because of the contradiction between the Talmud and the Mishnah. But then there is no reason at all to take the discussion toward the value of the wall. That’s what Tosafot here says: “However, this can be rejected,” meaning, there’s no need to establish it as dealing with the value of the wall; rather, we’re talking about his liability regarding the animal, but not for the animal’s damages, rather for the loss of the animal. And then indeed that’s what comes out in the Shulchan Arukh according to the “however, this can be rejected.” I hadn’t thought that here he explains more explicitly this matter of “it is designated for demolition and collapse,” because “for demolition and collapse” simply means the same explanation he brought above, so I don’t see why it would need to be a different explanation. Here at the end he brings only a third explanation, if you look: “Alternatively, the liability in heavenly law also refers to the wall, because he benefited from it until workers would become available to repair it.” Meaning, you are liable to me in heavenly law for the rickety wall that you demolished— this is also talking about a rickety wall that was designated for demolition, because I would have waited until I found workers; in the meantime I could still benefit from that wall. You prevented me from using that wall, therefore you are liable to pay me in heavenly law. And that’s a big novelty, because apparently if there is a hazard here, then by doing the job for him you only performed a commandment; why in the world should that obligate you for the wall in heavenly law? I don’t know, that’s the third explanation according to Tosafot there. I still don’t understand what the difference is. Is “it is designated for demolition and collapse,” which is also written in Tosafot here— yes, “alternatively, that is to say, it refers to demolition and collapse,” you see, the second answer also appears in Tosafot there in the same brief form— it seems to me to be the same thing. It sounds like: “liable in heavenly law alternatively also for the wall”; one can say that since it is designated for demolition, and the owners are commanded to demolish it so that it not fall on people, it might enter your mind that whoever comes first to perform the commandment acquires the merit, and this one has no reason to refrain from demolishing it because of his fellow’s animal, and even in heavenly law he should not be liable. What’s the difference? “It is designated for demolition and collapse,” meaning it is about to be demolished and to fall, and therefore what? Therefore I might have thought that I would not need to be liable even in heavenly law. I don’t know, maybe it’s just an “alternatively” based on a textual variant. Okay, Nachmanides in Kuntres Dina De-Garmei writes as follows: “Let this be a great principle in your hand: anyone who causes, and through his causation brings about damage that cannot occur except through that damage, and it does not depend on the will of others, but at the moment he caused it, the damage came, or it is destined to come— such as this— Rabbi Meir obligates, and in the Talmud this is called certain damage.” “And therefore in Bava Kamma 55b we exempt one who breaches a fence before his fellow’s animal and it was lost.” Again we see how he sets it up that the animal was lost, not that the animal caused damage. So far we still haven’t found even one person who explicitly explains that we’re talking about the animal causing damage. In Rashi it says the animal was lost; you can force it otherwise, maybe. Tosafot doesn’t mention anything; he too repeats Rashi’s explanation, and simply it seems the animal was lost. Tosafot in Sanhedrin says the same thing, that the animal was lost. Everyone is talking about the animal being lost, except that according to the “however, this can be rejected” in Tosafot, it’s clear why they all establish it that way: to resolve the contradiction with the Mishnah. According to Rashi it isn’t clear why, because in any case he establishes it regarding the wall, so why does he need to establish it that way? But still, we haven’t found anyone who says this explicitly, that it’s not talking about the animal being lost. So Nachmanides also writes explicitly that what we’re talking about here is the animal being lost: “And therefore we exempt one who breaches a fence before his fellow’s animal and it was lost: if it is a rickety wall, since it does not guard, he can say, ‘I did not cause you any damage at all,’ and in any event it was designated for demolition, and before you came it would have fallen. And if alternatively it is a sound wall, he is exempt regarding the animal, as we learned: ‘or if bandits broke in, they are exempt,’ because he can say, ‘Who says it would go out? And even if you say it went out, who says it was lost? Perhaps it would be found,’ and therefore it is not certain damage; and this is also Rashi’s view.” So what is he saying? With a sound wall he is exempt regarding the animal, and where does he learn that from? From “if bandits broke in.” But “if bandits broke in” speaks about the animal’s damages, not about the loss of the animal. You see? “Because he can say, who says it would go out? And if you say it went out, who says it was lost?” If we applied that to the Mishnah, it would have to be: who says it went out, and if it went out, who says it caused damage? So he too understands it as though the going out and the loss are the same level of indirectness. There are two steps: it has to go out, and then it also has to be lost; not every animal that goes out is also lost. Same thing with damage. Therefore Nachmanides says he goes here exactly like Rashi all the way, and he says that if so, then in Rashi too there is no reason to say otherwise, that we are really talking about the loss of the animal. But even though we are talking here about the loss of the animal, his reconciliation of the Talmud with the Mishnah is done like Rashi. He does not make a distinction between the loss of the animal, like the “however, this can be rejected” of Tosafot in Sanhedrin. Rather, the point is simply that we are talking about the wall and not the animal. “But some explain that when the Talmud asks, ‘If it is a sound wall, then in human law he should also be liable,’ this also refers to the animal. For if it referred to the wall, what question is there? We are saying regarding the animal that he is exempt in human law, as it teaches: ‘before his fellow’s animal.’ And one can always say to you that we are dealing with a sound wall, and he is liable for the wall. And even though we learned: ‘if bandits broke in,’ and they are not liable until they strike it”— that is only for liability for its damages, because as long as it has not entered their domain, they are not liable for its damages. But for the body of the animal itself they are always liable until they return it to a guarded place, because at the moment he breached it, it left the owner’s domain and they caused that. Therefore they are not exempt regarding the body of the animal until they return it to a guarded place from the owner’s domain, for they removed it from his domain from the moment he breached it. But for damages they are not liable, because who says it would cause damage? It is not certain damage. And this reasoning is correct.” This already goes like the “however, this can be rejected” of Tosafot, right? That basically it makes a distinction between the damages the animal caused and the loss of the animal itself. For the body of the animal they are liable until they return it to a guarded place. For its damages, what is written in the Mishnah that if bandits broke in they are exempt— that is about its damages. But if they stole the animal or caused the animal to be lost, they are liable until they return it to a guarded place. And actually at one stage I thought to explain this in another way too, that it could be that if he is liable for the wall, then he also becomes liable for the loss of the animal. Why? The moment you breach a sound wall, you are liable for the wall, so you have basically done an act of damage to your fellow that caused your liability for the wall and automatically also your liability for the animal. And altogether this is one act. But all of that is only about the loss of the animal, not about its damages. And why? Because when the animal is lost, to whom did you cause the damage? To the owner of the animal, who is of course also the owner of the wall. So when you breached a sound wall, you essentially caused damage to this structure of the pen, right? And part of that damage is that the animal is no longer there. So one can say that this entire damaging act is considered direct damage by hand. And therefore if for the wall you are liable because it is a sound wall, you will also be liable for the animal— as long as we are talking about the loss of the animal. But not for the animal’s damages. Why not? Because for the animal’s damages, with respect to whom are we talking about liability? With respect to the injured party, right? Liability for the damages caused by the animal is liability toward the injured party. Okay? But liability toward the injured party is a different liability from the liability toward the owner of the wall. The owner of the wall is the owner of the animal. So you can’t say that there is one act here that obligates me both for the wall and for the animal. Therefore, regarding the animal’s damages, one who breaches a fence before his fellow’s animal— if it is a sound wall— is also exempt for the animal’s damages, like “if bandits broke in.” But for the loss of the animal, for the loss of the animal you would be liable so long as it is a sound wall. But not for a rickety wall. Because with a sound wall, since you did direct damage to this pen and became obligated to pay at least the value of the wall, then you should also pay for the loss of the animal; it is part of the same matter. It is like one act that you did in its entirety. Because if this is like “it begins with negligence and ends with an accident” of that sort, it is of course not the same thing, because we’re not talking here about an accident. Rather, it begins with direct action and ends with indirect causation. Since you did direct damage, I don’t care that afterward more damage continued through indirect causation. If the damage began through your direct act, then everything that branches out from it you must pay for— pay for it like a person who directly damages. So what can branch out from the damage you did to the sound wall? Only the loss of the animal. The damages the animal causes are unrelated, because the damages the animal causes are damage that you caused to the injured party, not to the owner of the animal. That you cannot view as a continuation of the damage from breaking the wall, which is damage caused to the owner of the animal. And then maybe one can also understand both things, both in Rashi and in Nachmanides. On the one hand, they insist on establishing here that we are talking about the loss of the animal and not the damages of the animal, because for the damages of the animal you really would not be liable. We are talking about the loss of the animal. On the other hand, they talk about the wall. Why do they talk about the wall? Because even for the loss of the animal, if it were a rickety wall, you would not be liable. Only because it is a sound wall, and you are obligated to pay for the wall itself because you destroyed it, then automatically you are also liable for the loss of the animal, because it is all one damaging act toward the owner of the pen and the animal. But the animal’s damages— that you cannot pin on the one who destroyed the wall, because the wall is damage to the owner of the pen and the animal, whereas the damages are to the injured party. Just one comment I’ll make here— maybe I didn’t bring it before. Rashi writes here, I can’t find it here, maybe it’s Tosafot? I just remember— I don’t know if it was Rashi— but I remember seeing, for some reason I remember seeing it in Rashi, that “liable in heavenly law” means because he caused the owner’s liability. With a rickety wall he is liable in heavenly law because the owner will have to pay for the animal’s damages, and then you, who breached the wall, essentially brought damage upon the owner. No, I can’t find it right now, but I remember seeing it in one of the commentators here, Rashi or Tosafot; maybe it was that Tosafot? You understand that if that’s the case, then what I said before is not correct. Because then if the claim is that I cause damage to the owner because with a rickety wall the owner will have to pay for the damages caused by his animal, then what I am liable for in heavenly law is causing damage not to the injured party but to the owner, who will have to pay for the damage. And if so, then apparently one could also route the animal’s damages through my liability for the wall, because in the end all those damages are really, in effect, damages to the owner of the animal and not to the injured party himself. Okay, I can’t find it here; maybe it’s Maimonides, and we’ll see it next time. Rabbi?

[Speaker B] Yes. Nachmanides here distinguishes between certain damage and uncertain damage, right? But that’s only according to Rabbi Meir’s position. Is Nachmanides following Rabbi Meir here?

[Rabbi Michael Abraham] Rabbi Meir adjudicates the law of indirect causation; we rule in Jewish law like Rabbi Meir.

[Speaker B] So our Mishnah is according to Rabbi Meir, based on that? Or…

[Rabbi Michael Abraham] All of them, everybody rules in Jewish law like Rabbi Meir. There is, I think, one esoteric view that does not rule like Rabbi Meir. Basically, I think this is connected to the position of the medieval authorities (Rishonim) that says that the difference between indirect causation and direct-indirect causation is only the question whether indirect causation is exempt or indirect causation is liable. We rule that indirect causation in damages is exempt. Rabbi Meir adjudicates the law of direct-indirect causation because he holds one liable for indirect causation in damages, but according to most views, direct-indirect causation is liable. Okay, we’ll stop here. Next time we’ll already get into Maimonides’ position on this matter, and maybe we’ll also get a bit into one who positions his fellow’s animal. Okay then, goodbye.

[Speaker E] Goodbye, thank you very much.