Chapter: The Receiver — Lesson 9

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[Rabbi Michael Abraham] So that’s it—let’s read. And on this point Tosafot disagree with Maimonides’ approach. According to Tosafot—I’m continuing to read—the one who breaches the wall is exempt from paying, since the wall has no monetary market value. Maimonides, by contrast, holds that he must pay for depriving the owner of benefit, even though he did not cause him a monetary loss on the market. The dispute is really about how we assess damages. The question is: when you damage an object that has value to its owner, but no market value—according to Maimonides, in such a situation you have to pay that value, while according to Tosafot you do not, because what you pay is market value. Now, I think this is contradicted by Maimonides’ own words; it’s very far-fetched to explain Maimonides that way. Maimonides himself writes what the logic is for not paying in the case of a dilapidated wall. After all, a dilapidated wall also has value—admittedly a low value, not like a sound wall, but it still has value. So obviously one would pay the value of the dilapidated wall. Right, that’s what Maimonides explicitly writes. Meaning, Maimonides disagrees with Tosafot not on the question of what happens with a wall that has no market value at all. It just has a lower market value than a sound wall. That’s all. So I think this explanation of Rabbi Soloveitchik doesn’t hold up—in other words, it doesn’t fit what Maimonides writes—but it’s an interesting explanation, and that’s why I brought it, because it brings us into a famous topic among the later authorities (Acharonim). Netivot—it’s well known that Netivot, in section 148, talks there about someone who damages something that has sentimental value. Say I have a picture of my grandfather, okay? And somebody damages that picture. Now, if I wanted to sell it on the market, nobody would buy it; it interests no one. But for me it has sentimental value—it’s a picture of my grandfather. Does he have to pay or not? Okay? So there’s a major dispute there. Netivot discusses it and Kehillot Yaakov disagrees with him, and there’s an article by Rabbi Zalman Nechemia Goldberg in Techumin and more. In the summary you’ll see that I refer to a survey of this; you see here, there’s a link here. Click here—survey—you can click there, there’s an article that reviews these issues. By the way, someone who studied with me at the institute wrote that article, Roni Ornstein; today he’s a doctor of law. And Rabbi Soloveitchik essentially hangs the dispute between Tosafot and Maimonides here on that issue. But the truth is, as I said before, it doesn’t fit into Maimonides.

Further on—okay, I brought here another passage from Rabbi Soloveitchik, where he discusses the following question: “And it seems that one should investigate, regarding the law of the four cases of Rabbi Yehoshua that are exempt under human law but liable under the law of Heaven, whether their liability under the law of Heaven is a monetary obligation or an application of a prohibition.” Meiri writes explicitly that it is an obligation of payment, but the usual interpretation is that it’s a prohibition—liable under the law of Heaven means liable to punishment. And there will be practical differences in several matters, such as seizure. Yes—if you are liable under the law of Heaven to pay, there are opinions that one can seize it from you. By contrast, if it’s a prohibition on you—you are liable to punishment under the law of Heaven—then what does seizure have to do with it? You don’t owe me any money. “See Rashi’s commentary to Bava Metzia, according to whose old text of Rashi seizure is effective in a liability under the rule of ‘he receives only the greater punishment,’ since he is still obligated to satisfy his obligation before Heaven.” Yes, if there is the rule of “he receives only the greater punishment,” you are still obligated to pay, only you must pay under the law of Heaven, so seizure is effective. Meaning, a monetary obligation takes effect, but the religious court does not collect it. Another practical difference concerns the rule of “he receives only the greater punishment”: if a monetary obligation takes effect, that matters for acquisition by money—he brings another practical difference from this. “And it would seem that according to Rashi and Meiri, the one who breaches a dilapidated wall is liable under the law of Heaven because he did not intend a commandment,” not a monetary obligation. “Did not intend a commandment” means the commandment to demolish the wall so that it should not fall—we talked about that, that it was meant to be demolished. So he performed a commandment, but he did not intend it; he intended a prohibition. “And this is not a monetary obligation, but merely the application of a prohibition.” Why merely the application of a prohibition? “Because the commandment ‘do not place blood in your house’ obligates demolishing the wall. Therefore it is impossible to call this demolition an act of damage, and it is impossible for a monetary liability to take effect.” Right? After all, it’s obvious that in practice you did not cause damage, because there is a commandment to demolish the wall. Now true, you intended to cause damage—you didn’t intend to demolish the wall—but in practice what you did was demolish a wall that there was a commandment to demolish. How can you say that you are under an obligation to pay? All in all, the homeowner should have done this, and now even the claim I mentioned earlier—that the homeowner could say: yes, I was going to do it in another ten minutes, and you already did it now and caused the animal to go out and cause damage.

[Speaker C] But we saw in Meiri that liability under the law of Heaven is monetary. Right. We saw that explicitly—so how can he say here that it isn’t, that it’s only the application of a prohibition and not the application of a monetary obligation?

[Rabbi Michael Abraham] No, he says that according to Meiri, liability under the law of Heaven is a monetary obligation—but in the case of one who breaches a dilapidated wall, where it says he is liable under the law of Heaven, it cannot mean a monetary obligation even according to Meiri, because here he did not—true, he did not intend a commandment; he intended a prohibition and not a commandment—but since there is a commandment to demolish it, how can one say that there is an obligation to pay under the law of Heaven? On the contrary, he assumes here that the basic concept of liability under the law of Heaven in the passage is an obligation to pay, only specifically in the case of a dilapidated wall it cannot be explained that way, even according to Meiri. That’s his claim. Because if the wall is meant to be demolished, then how can—what would the assessment be? What would I pay you under the law of Heaven? This wall is worth nothing. I did you a favor. So I didn’t intend it—so what if I didn’t intend it? Maybe I deserve a prohibition because of the bad intention, but an obligation of payment has no place here. So here too Meiri agrees that liability under the law of Heaven in the case of a dilapidated wall means only a prohibition and not payment.

“However, since he did not intend a commandment but rather to cause damage”—I’m continuing to read—“he committed a transgression, and that itself is his liability under the law of Heaven. It is similar to”—and this is the interesting connection he makes—“the prohibition mentioned in tractate Nazir, in the case of one who intended that pork should come into his hand, but lamb came into his hand, who requires atonement, based on the verse ‘and the Lord shall forgive her’; see there.” Right, this is the famous Rashi in parashat Matot. “And here too, he intended to cause damage through a prohibition and not to fulfill a commandment, and an intention of prohibition constitutes a prohibition, and that is his liability under the law of Heaven.”

And just parenthetically: that Rashi in parashat Matot speaks about a woman whose husband annulled her vow on the day he heard it, but did not tell her that he had annulled it. She thinks the vow is still in force. And then she deliberately decided to violate the vow—sorry, to violate the vow. Now, in practice the husband had annulled it, so in fact she did not succeed in violating the vow, because the vow had been annulled, but she intended to violate the vow. About that the verse says, “and the Lord shall forgive her.” Why does she need forgiveness? After all, she did not violate the vow. From here the Sages derive that one who intended to eat pork, but lamb came into his hand, needs forgiveness and atonement. Because it says, “and the Lord shall forgive her”: she intended to eat pork, to do a prohibition, and in the end it turned out to be lamb, something that is not prohibited at all, and she still needs forgiveness and atonement. So the same here, yes? That passage in tractate Nazir is really the source for this Rashi. So Rabbi Soloveitchik says: in our case it’s the same thing. When you demolished the dilapidated wall, which was in fact meant to be demolished—there is a commandment to demolish it—then in practice you performed a commandment, but you intended to do a prohibition, so a commandment came out of it. Okay? In such a situation, it’s like intending to eat pork and having lamb come into your hand, which involves a prohibition, and therefore you need atonement. And that atonement is of course not an obligation of payment but punishment under the law of Heaven.

You should note that there is a bit of a difference between the cases, because the woman who thought she was violating that vow—although she thought it was prohibited, she thought it was prohibited for her, but in practice the vow had been annulled. Okay? So she ate that loaf which she had forbidden to herself, and that is like intending to eat pork and having lamb come into your hand. Now here, the person sees that the wall is dilapidated. There is no information missing to him; it’s not like the woman. The person actually knows that this is a dilapidated wall meant to be demolished. He’s not such a great righteous man—he does it in order to harm the owner of the wall—but he knows that there is also a commandment to demolish the wall, and therefore from the outset, when he demolished the wall, his thoughts may not have been for the good, but he explicitly knew that he had halakhic permission to do it. I have serious doubts whether one can say here that he requires forgiveness and atonement for this, that he is liable under the law of Heaven. It’s not the same as the woman. Someone who intended to eat pork and had lamb come into his hand, or the woman who ate that loaf whose vow had been annulled but she didn’t know it had been annulled—in the person’s consciousness he was sure he had done a prohibition; only in practice that wasn’t true. Here, the person knowingly knew there was no prohibition here. He would do it even if it were a sound wall, because he wants to harm the owner of the wall, but bottom line he knows that there is permission here. So he has the intention to do something bad, but even in his own consciousness he understands that he did not do something bad. It’s a bigger novelty to say that even for something like this you are liable. Meaning, suppose a person wanted to destroy the wall—or you know what, a person wanted to eat pork, it was lamb, he wanted to eat pork, but in the end he didn’t eat it at all. He just wanted to. Does he need forgiveness and atonement? Seemingly here too he has malicious intent. He didn’t do it—so what if he didn’t do it? Bottom line, he has malicious intent.

[Speaker D] It says that he needs forgiveness and atonement, but he ate.

[Rabbi Michael Abraham] What? If he ate.

[Speaker D] No, even if he didn’t eat. But that’s only regarding—though not regarding damages. Where does it say that? It says that the Holy One, blessed be He, joins thought to deed from the third time.

[Rabbi Michael Abraham] No, a bad thought—not, that—

[Speaker D] A good thought from the start, and a bad one only after three times. Fine, but there is such a category. No, okay, but I’m saying with regard to damages it really is another discussion.

[Rabbi Michael Abraham] No, but this also isn’t about damages—what is this three times? He’s doing it now for the first time.

[Speaker D] No, three times is because you need proof—who says he would have done it? No, but even after he’s failed at this again and again, you can assume so. No—you’re saying that in our specific case, who says it’s the third time? No, he’s a professional bandit; he’s done many such actions.

[Rabbi Michael Abraham] No, but I’m saying: this person here can do this to every dilapidated wall in the world and you still know nothing. Because it could be that he’s doing it because he himself understands that there is permission to do it.

[Speaker D] No, if he really is doing it for that reason, then there’s no—

[Rabbi Michael Abraham] But you don’t know. Again, even according to your view, you still can’t know.

[Speaker D] No, according to my view we look at his other actions.

[Rabbi Michael Abraham] And there are no other actions; he only demolishes dilapidated walls—that’s what he does.

[Speaker D] No, assuming all we have is this, then we can’t, right.

[Rabbi Michael Abraham] But that’s what we’re talking about. You’re making an interpretive setup for his words.

[Speaker D] No, it’s not such an interpretive setup, because he’s talking—not, what, he’s talking about a normal person. He came in order to destroy the wall.

[Rabbi Michael Abraham] But he knew the wall was dilapidated.

[Speaker D] He knew, yes, but he didn’t come because of that. He didn’t come because of that, right?

[Rabbi Michael Abraham] I don’t know. We estimate, but as you say, maybe not.

[Speaker D] And it’s not all just estimates. If it’s all estimates, then yes.

[Rabbi Michael Abraham] But again, if it’s not estimates but you know, then in the context of prohibitions you could say the same thing. So why do you need an estimate there?

[Speaker D] You always need an estimate, but I mean it’s not just a random guess from outer space.

[Rabbi Michael Abraham] Here too you need one. So how do you punish him without an estimate?

[Speaker D] I’m not saying—there is an estimate. What estimate?

[Rabbi Michael Abraham] Based on what?

[Speaker D] So you have to rely on there being a context for the action.

[Rabbi Michael Abraham] Right, so that’s an interpretive setup—that he declared in advance before two witnesses, or that he broke a wall—

[Speaker D] You don’t need two witnesses; there’s context. People’s actions have context; they’re not detached. You see how he came, what he came for.

[Rabbi Michael Abraham] But then that’s also true of someone who intended to eat pork.

[Speaker D] Right, I’m saying it’s true. Ah, why do you need three times? Because there we have no evidence at all—he just thought and went to sleep. Well, then here too it’s the same thing: he thought and went to sleep?

[Rabbi Michael Abraham] Here too he thought and went to sleep.

[Speaker B] Maybe not,

[Speaker D] He did an act because of his thought. But that act is an act of—

[Rabbi Michael Abraham] permission.

[Speaker D] I understand. So it’s similar to the case of a person who wanted, planned, to eat pork and ate lamb. He didn’t go to sleep; he ate lamb because of his thought.

[Rabbi Michael Abraham] Not true, because here he knew it was lamb.

[Speaker D] No—he ate lamb and knew it was lamb, but he didn’t go to sleep; that’s something else.

[Rabbi Michael Abraham] So we’re back to it again—once again we’re back to it, so that’s not an example. But there it’s talking about where he didn’t know it was lamb.

[Speaker D] No, I’m giving another example: a person intended to eat pork and ate lamb and knew it was lamb. That’s not like the story where he went to sleep.

[Rabbi Michael Abraham] So what relevance is it that he intended to eat pork? Just say he ate while intending to eat pork.

[Speaker D] Exactly—why is that relevant? Because we—because, I don’t know, you can always ask what ties the intention to the act, but—got stuck. Suppose I can establish a connection between the intention and the act; then I can say: the act itself was permitted, but the intention was prohibited, and that’s enough to create liability.

[Rabbi Michael Abraham] But I thought about eating pork, okay? Now there is standing in front of me a piece of meat that I know is lamb. I ate it. Yes. So what’s the difference between that and saying: I thought about eating pork and did nothing, I went to sleep?

[Speaker D] It’s the same thing. Because in the first case we have no indication that the impulse was strong enough to move you to action. In the second case we saw that you did something because of it.

[Rabbi Michael Abraham] I didn’t do—no, that’s not true.

[Speaker D] Do you deny that there is a connection between the specific intention and the act?

[Rabbi Michael Abraham] Good Lord—someone thought about eating pork and stood on one leg—

[Speaker D] Well, that too—

[Rabbi Michael Abraham] he did an act. What does that have to do with anything?

[Speaker D] There’s no reason to see that as a result of the intention.

[Rabbi Michael Abraham] And this is a result? He ate lamb and knew it was lamb.

[Speaker D] Right, obviously it’s not exactly what he intended, but still it’s connected to the intention.

[Rabbi Michael Abraham] What do you mean it’s not exact? It’s irrelevant. Why “not exact”? I’ve never heard such an understatement in my life. “Not exact”? He ate lamb because he was hungry—what does that have to do with the fact

[Speaker D] that he thought about eating pork? He compromised on lamb, but the intention to eat pork pushed him into some act.

[Rabbi Michael Abraham] No, it didn’t push him—what are you talking about? He ate lamb because he ate lamb. Who told you? He thought about eating pork.

[Speaker D] You can always ask who said—

[Rabbi Michael Abraham] that the intention and the act—

[Speaker D] Exactly, that’s the point.

[Rabbi Michael Abraham] Not always. I always ask.

[Speaker D] Right, but even a person who intended to eat pork and ate pork—maybe his intention to eat pork didn’t produce any action, and the fact that in the end he ate pork was just by chance. You can always say that.

[Rabbi Michael Abraham] Not true, you can’t always say that. Because if he ate pork, then that’s what he intended.

[Speaker D] Who says? Maybe the intention was about something entirely unrelated to this specific act?

[Rabbi Michael Abraham] Is he an unwitting sinner? For that you really need prior warning and all the rest. So then he’s an unwitting sinner; that has nothing to do with this at all.

[Speaker D] No, I’m not saying unwitting, no, no.

[Rabbi Michael Abraham] In principle, if you thought—if you know that he knowingly ate pork, then there’s no question about intentions; then he knew. Really. What do you mean? If he wasn’t aware—there you go.

[Speaker D] It’s always some kind of guess, because theoretically you can separate them; you can say that the intention didn’t find expression in this specific act.

[Rabbi Michael Abraham] No, no. A person thought about eating pork, ate pork, and knew it was pork—then he intended to eat pork. What do you mean? I’m saying that cannot be disconnected in any way. Okay. Unless he was an unwitting sinner. If he was an unwitting sinner, then indeed he would really be an unwitting sinner.

[Speaker D] No, I’m not talking about an unwitting sinner. I mean: who says that in any case he’s not unwitting?

[Rabbi Michael Abraham] No. So if he is deliberate and he eats pork, then what—how did he do it? He didn’t intend it, and yet he ate it anyway? But you’re saying he’s deliberate.

[Speaker D] Exactly. I’m saying: who says that this intention, this thought that was in his head to eat pork, is what lies behind this act?

[Rabbi Michael Abraham] There can always be some skeptical question like that; I wouldn’t ask it.

[Rabbi Michael Abraham] No. Someone who thought about eating pork and afterward ate some kind of meat, and we think he thought it was pork and he ate it—could it be that he didn’t eat pork? Indeed, then he would really be an unwitting sinner. Who says not? I’m talking about someone who was warned, “This meat is pork,” and he ate after the warning immediately before doing the act.

[Speaker D] Someone stubborn can still argue that he didn’t intend it. Fine.

[Rabbi Michael Abraham] There you can’t make that claim. Okay, that’s a different discussion.

By the way, parenthetically, I’ll just say here—it’s a bit late here—I’ll just say that the Rabbi of Brisk, in the stencils there on Nazir, writes that a bad thought is a full prohibition. He violated an actual prohibition. If he thought about eating pork and lamb came into his hand, he violated the prohibition of eating pork. He’s just not punished—he doesn’t get lashes—but he violated a prohibition. Which to me is completely untenable. Not just in logic—completely untenable textually. I mean, there isn’t a hint of it anywhere. It’s also obvious from the language of the Talmud—“he requires forgiveness and atonement”—that it does not mean he violated a negative commandment, but rather that he’s not okay. Like someone who does something immoral—so not because of a formal prohibition, but because he’s not a decent person, and so the Holy One, blessed be He, is angry with him. That is not the same as saying that it is a negative commandment. To me that is a very, very novel claim. And by the way, here too in Rabbi Soloveitchik—his nephew, right?—it sounds a bit from the last line that he also learned it that way. He says: “Here too, he intended to cause damage through a prohibition and not to fulfill a commandment, and an intention of prohibition constitutes a prohibition.” To that—

[Speaker D] There actually is logic to that.

[Rabbi Michael Abraham] Yes, I said—there definitely is logic to it.

[Speaker D] Because in the act itself there is no prohibition at all, so the whole prohibition is certainly on the intention.

[Rabbi Michael Abraham] Indeed. After all, if someone intended to eat pork and did nothing, he too should have gotten lashes—if you knew he really would have eaten it. Meaning, or someone who attempted murder and there was a defect in the firing pin and he didn’t succeed.

[Speaker D] From that standpoint, there is no reason at all to distinguish between an intention that came to expression and—

[Rabbi Michael Abraham] So here it really does sound from his words that he learned like the Rabbi of Brisk: an intention of prohibition constitutes a prohibition. Not that it constitutes something improper for which the Holy One, blessed be He, is angry, but it seems from him that it actually constitutes a negative commandment, like the Rabbi of Brisk—the negative commandment in question.

Okay, fine, we’ll stop here. How long—four-minute break, and we’ll come back, okay? Just to freshen up. We heard the wonderful words of the Steipler, of blessed memory; we want to continue a bit more on this matter of trust. The Chazon Ish in chapter 2 of Faith and Trust writes a great principle. He says that people have a mistaken notion, that trust means that a person is certain things will turn out the way he wants. But that’s not true. Trust means believing that everything is in the hands of Heaven. A person has no power to do anything without God’s will. And even if something seems bad to us, we know that it is what is best for us. After all, the Holy One, blessed be He, loves us more than we love ourselves. So how could it be that He would do something bad to us? Rather, it is hidden good. And that is the great test. Sometimes a person makes efforts, invests, tries hard, and in the end the result is not what he hoped for. Here he has to tell himself: I did my part, but the Holy One, blessed be He, decided otherwise, and that is what is good for me. That is the trust that calms the soul. A person is not living in anxieties and pressures, because he knows he is in the best hands possible. “Cast your burden upon the Lord and He will sustain you.” May it be God’s will that we merit such trust.

Okay, we’ll come back. Let’s come back, friends—turn on cameras, whoever can. Okay. So up to this point we were dealing with bandits who breached a wall and are exempt, as opposed to one who breaches a fence in front of another person’s animal, which is the case that appears in the Talmud. And we said that this whole statement with the four cases of indirect causation, where one is exempt under human law but liable under the law of Heaven, is brought incidentally to the issue of “bandits took it out,” because there is a difference between “bandits took it out” and “one who breaches a fence in front of another person’s animal”—maybe there is a difference, maybe there isn’t; we saw Maimonides and Rashi and Tosafot and so on. And I already want to complete the discussion of the bandits, the “they took it out” and “they breached it” and all these things, so I’m moving straight to “bandits took it out; the bandits are liable,” the continuation of the Mishnah. Afterward I’ll come back to these cases of indirect causation. Meaning, I’m moving to page 56b, where we talk about “bandits took it out,” because we’re already in the middle of this issue of breaching and taking out, so I want to finish it. After that, as I said before, we’ll come back to all those various cases of indirect causation.

Okay. So in the Mishnah it says as follows in the latter clause: “If bandits took it out, the bandits are liable.” The Talmud asks about this on page 56b: “Isn’t that obvious? Since they took it out, it stands in their domain for all purposes.” The bandits took it out, so the bandits are liable, because if bandits breached the wall they are exempt, but if bandits took it out they are liable. Why? The Talmud answers: it depends what kind of case we’re talking about. If they literally took it out, that is obvious, because once they took it out, it stands in their domain—it is in their domain for every matter. What does it mean that it is in their domain for every matter? Obviously they have to pay for the damage it causes. And again I remind you: the Mishnah, in its plain sense, is dealing with damages that the animal caused. Why is it really so obvious that if they took it out, then they are liable for its damages? On the face of it, what is the difference between breaching the fence in front of the animal so that it goes out and causes damage, and breaching the fence, taking the animal outside, leaving it there, and now it goes and causes damage? What—the difference is that I took it out that one meter from inside the fence to outside the fence? What difference does it make if the fence is breached?

[Speaker E] They acquired it by a change of domain. What? They acquired it by a change of domain, and now the animal is considered theirs in this respect.

[Rabbi Michael Abraham] In a moment we’ll see—you’re right—but before I get there, you’re right, but before I get there I’m looking at this, for now, on the level of principle, in the laws of monetary damage, of the damager. Meaning, what difference does it make if, let’s say, I’m even to blame for breaking the fence, and therefore if the animal went out and caused damage then I’m liable? So I’m liable. So why, when I merely broke the fence, without actually taking the animal out, am I not liable? Especially given what Maimonides says—that if we’re talking about bandits who broke through it, they did not intend for the animal to go out and cause damage. Right? After all, that was Maimonides’ distinction: as opposed to someone who breaks a fence intending that the animal go out and cause damage, bandits who broke the fence did not intend that the animal go out and cause damage, and therefore they are exempt. That’s how Maimonides explains it there. So what difference does it make if they took it out and then left it? They still did not intend for it to go out and cause damage. Therefore it’s no wonder that the medieval authorities (Rishonim) here—and really this already seems implied in the wording of the Talmud—also bring in the issue of ownership here, not only the question of how much responsibility the one who broke in, or the bandits, have for the damages the animal caused. So Rashi here indeed writes: once they took it out—Rashi says: there is acquisition by pulling together with change of domain, so that it is acquired for all purposes. Essentially, I performed a pulling acquisition with change of domain, I brought it to myself the moment I took it out, and then it is acquired in every respect. Meaning, the bandits are liable for the damages because… they are the owners of the animal. Therefore they are liable for the damages. What is the root of the matter? Say they acquired the animal through the acquisitions involved in change of domain—yes, there is basically pulling and change of domain here—so they acquired the animal. So what? So now the animal is their animal. And since it is theirs, then why do they have to pay? Because if your property causes damage, you have to pay; you are now the owner for this purpose, right? Simple. It has nothing to do with the fact that you didn’t guard it properly—for example, that you broke the animal’s fence. That’s not the issue at all. You took it out; from the moment you took it out, it is yours. Now, from where did it go and cause damage? Did you put it behind a properly guarded fence? If so, everything is fine, and by the way you would indeed be exempt, even though you took it out. If you guarded it properly there, and nonetheless it got out, you would be exempt. But here we’re talking about a different case. Meaning: I took it out, and that’s it, and now it went and caused damage; I didn’t place it under protection. So I’m at fault not because I broke the fence and thereby caused the damage. I’m at fault because my animal went and caused damage. An animal acquired by me went and caused damage. Okay? That, at least, is what emerges from the Talmud. Therefore there is an essential difference between “bandits broke through” and “bandits took it out.” Because in the case of bandits breaking through, we are discussing the question of how responsible you are for the damages the animal did, and here the answer is that you are not responsible. Okay. Now if the bandits took it out, the answer ought to be the same: you are still not responsible. Because from the standpoint of the connection between what you did and the damage the animal eventually did, it is the same connection. It makes no difference whether you took it out or did not take it out. If you opened the door and also took it out, or only opened the door, the link between you and the damage is the same link. What changed between taking it out and not taking it out is that when the bandits took it out, they became owners. And once they are owners, if the animal is not guarded and you are its owner, then you have to pay just as when it causes damage. That is what comes out of Rashi. But Tosafot—Tosafot writes here a bit differently. Let’s read it.

“It is obvious: once they took it out, it stands in their domain for all purposes.” Yes, maybe before that, the wording of the Talmud too: “Once they took it out, it stands in their domain for all purposes.” The Talmud’s wording says exactly this. “It stands in their domain for all purposes.” The meaning is that it is theirs, and therefore they are liable as a case of their property causing damage. Tosafot says: “The Mishnah is speaking about taking it out in order to steal it, as is proven in the Jerusalem Talmud.” What does that mean? The Jerusalem Talmud says: if those bandits took it out—but not as bandits, meaning they took it out not in order to steal it, but simply because they wanted to torment the owner of the animal—but not in order to steal it, what would the law be then? Exempt. Because that is like “bandits broke through.” Because basically what happens here is that there is no ownership, since you didn’t pull it in order to acquire it. True, you pulled it, but not with intention to acquire it. And your responsibility for the damage that happened is altogether like indirect causation, like one who breaks the fence in front of another person’s animal. It makes no difference whether you took it out or did not take it out, in terms of the degree of your responsibility for the damage that eventually occurred. So if there is no responsibility and no ownership, then there is nothing at all. If you intended to steal it, then there is ownership here and therefore you are liable.

Now Tosafot says: “And if you say: how do we know that it stands in their domain even to make them liable for the damage it causes? For that is what the Mishnah means when it says, ‘and it went out and caused damage.’” He sharpens the point here once again: this is not talking about loss of the animal, as we saw in the previous class, but about damages that the animal caused. Okay? Tosafot says: if we are talking about damages the animal caused, who says it “stands in their domain” even to make them liable for the damage it causes? You have to remember in the background here: even if there is pulling and change of domain, clearly the owner does not intend to transfer the animal to the robber, to the bandits. This is not a pulling acquisition that acquires in the ordinary way. At most we are dealing here with theft-acquisitions, not a regular acquisition like when someone buys an animal from somebody. Okay? Tosafot says: so these theft-acquisitions—who says they also apply in the sense that you become liable for the damages the animal causes? And that it is entirely yours, including responsibility for the animal’s damages? Who says so? And Tosafot has some initial assumption here, some initial thought, that the bandits acquire the animal through theft-acquisitions—if they pulled it and there was a change of domain, they acquire the animal through theft-acquisitions—but still, as far as their responsibility for its damages goes, maybe not. And therefore Tosafot says: how do we know? How does the Talmud say “it is obvious”? How does the Talmud know so simply that this acquisition which the bandits have is an acquisition to such an extent that they must also pay for its damages?

Tosafot says—I continue reading in Tosafot: “For one cannot say that just as when he handed it to an unpaid guardian, and the borrower entered in place of the owner, so too a robber. Perhaps a guardian is liable, but a robber is not. For we find matters in which the guardian is liable and the robber is exempt. For in the case of an animal that wasted away reversibly, and produce of which part rotted, it is proven in the first chapter of ‘HaGozel’ that the robber says to him, ‘Here is yours before you,’ since this is not considered a change and he has not acquired them, and he is exempt even in negligence, because he did not accept a duty of guarding. He did not accept guarding, so he is exempt even if he was negligent. But a guardian, since he is liable in the case of irreversible wasting away and where all of them rotted if it happened through negligence, so too he should be liable in reversible wasting away and where part of them rotted, since he accepted guarding. And why should he not be liable in this as in that? For the guardian does not acquire through change, and even a borrower, regarding whom we hold that a borrower is called a guardian, according to Rav Kahana and Rav Assi.”

What is Tosafot saying? You cannot say that we learn the robber’s liability from guardians. One could have said that the robber is not really liable for the animal’s damages by virtue of ownership. Indeed, the ownership is not full ownership, and it is not enough to view him as the owner of the animal for purposes of responsibility for its damages. But perhaps we could learn it from the laws of guardians. Why? Because a guardian too is not the owner of the animal. Right? I deposited an animal with a guardian—an unpaid guardian, a borrower, whatever. I deposited an animal with him. He is not its owner. And nevertheless, if the animal causes damage, he must pay. So if that is so, the robber should not be worse than the guardian. And therefore maybe the robber is liable for the animal’s damages not because of his ownership, but simply because he is no worse than a guardian.

So Tosafot says no, you cannot compare a robber to a guardian. Why not? Because the guardian accepted guarding upon himself. Or translated into our language: a guardian operates under contract law. The guardian has a contract with the owner. And the moment he took the animal, he undertook not only to guard the animal so that it should not be damaged, stolen, or lost, but also that it should not cause damage. Meaning, he steps into the owner’s shoes also in terms of responsibility for damages the animal causes. And how does he step into the owner’s shoes? There is a contract between them. He committed himself to the owner—maybe he is paid, it doesn’t matter, or if he is an unpaid guardian then he is not paid—but there is a contract between them, and by virtue of that contract you must protect the animal and also make sure it does not cause damage. That does not exist with a robber. Therefore there is no point comparing a robber to a guardian. In the case of a guardian, what he is liable for is because there is a contract. In the case of a robber, all you can possibly obligate him for is by virtue of his being an owner. And from the standpoint of ownership, who says a robber’s ownership is so absolute that he also has responsibility for damages the animal causes? That is Tosafot’s question.

Just parenthetically—these are things we may perhaps get to in later classes, mainly regarding “its beginning in negligence and its end in an accident,” maybe—one could have said: look, what does the guarding contract between me and a guardian include? Suppose I hand over my animal to a guardian so that he will guard it. What does that contract include? We are used to Bava Metzia and all the other places where that contract means that you will care for and guard my animal so that it will not be damaged. There is nothing there about the animal not causing damage. Suddenly in Bava Kamma we discover that a guardian also enters in place of the owner regarding damages the animal causes, not only damages the animal suffers. Where does that come from? You can understand it in two ways.

One way would be to understand it as part of the contract. Once I appointed you to be responsible for the animal, obviously—I’m not next to it, after all—it is highly reasonable that I also arranged matters to prevent damage the animal might cause; otherwise, what, am I suicidal? The animal will cause damage and I’ll have to pay millions because he only has to guard the animal from being harmed, not from harming others? Rather, what? I demand of him, within the framework of the contract, also to guard the animal so that it will not cause damage, not only that it will not be damaged. That is one possibility. And then the claim is that the obligations of a guardian regarding damage caused by the animal under his responsibility are contractual obligations by force of the contract. By the way, according to this, for example, if the injured party now sues—whom should he sue? The owner of the animal, not the guardian, right? The owner of the animal is responsible to prevent the damages, and the owner of the animal should pay him. Afterwards he can sue the guardian, because after all I had a contract with you; you were supposed to make sure my animal did not cause damage, so please pay me for what you caused me. That reminds us of what Maimonides said, if you remember, about the one who broke in: the one who broke in caused the animal to go out, then the owner of the animal paid the injured party, and then the owner of the animal sues the one who broke in to reimburse the money he paid. The damage that the one who broke in pays is damage caused to the owner of the animal, not to the injured party. Okay? Meaning, the one who sues him is not the injured party but the owner of the animal. That is the contractual model. And if a guardian’s obligations for damage the animal causes are based on a contractual obligation arising from the contract the guardian has with the owner, then basically the injured party goes to the owner, and the owner goes to the guardian. It could be that because of Rabbi Natan’s lien the injured party could go straight to the guardian, but in principle the claim is a claim against the owner.

But one could also say otherwise—and apparently this is what Tosafot assumes here. One could say that the contract really deals only with protecting the animal—that is my interest. Then the Torah comes and says: I require the guardian to guard the animal so that it does not cause damage, because from my perspective he has now entered in place of the owner—not because of the contract. Maybe it is because of the contract, but not by force of the contract. Because you have a contract with the owner and he deposited the animal with you, now the animal is with you; the owner cannot guard it. So I, who obligated the owner to guard his animal so that it does not cause damage, now direct that same requirement toward you, the guardian. And now basically the one responsible that the animal not cause damage is the guardian—but not because of the contract he has with the owner; rather because the Torah obligates the guardian to guard, just as the Torah obligates me to guard my property so that it does not cause damage. The Torah views the guardian as the relevant owner. Yes?

Now if that were so—if that were so—you understand that there really would be room to compare a robber to a guardian. Because with a guardian too it is not because he accepted guarding upon himself, but because the Torah obligated him: the animal is with you. Once the animal is with you, we see you as responsible that the animal not cause damage, or responsible for the damages the animal does. So because with a robber it came to him through wrongdoing, the Torah will give him a discount? On the contrary—it is an a fortiori argument. If the Torah requires it of a guardian, even though the owner did not require it—because according to that assumption, by force of the contract the guardian is not obligated to guard the animal so that it not cause damage, only so that it not be harmed—and nevertheless the Torah intervenes and says: no, no, the animal is with you, so I require you to be responsible for the damages it does—then with a robber, who took the animal through a transgression, all the more so the Torah would require him to be responsible for the animal’s damages.

And Tosafot says that you cannot learn a robber from a guardian because the guardian accepted guarding upon himself. What Tosafot says here makes it quite clear that Tosafot understood the guardian’s liability as contractual liability, and therefore he says the Torah does not impose it on just anyone; the Torah imposes it only on the owner. If the owner appoints someone else, and he has a contractual obligation with him, let him settle with him. As far as the Torah is concerned, the owner of the animal is always responsible for its damages. If that is so, one could say that this applies only to a guardian and not to a robber, just as Tosafot says that one cannot derive the law of a robber from the law of a guardian. But if the conception were that the law of a guardian is an obligation imposed by the Torah, then logic would suggest that in the case of a robber too the Torah would impose that same obligation, all the more so.

“And one cannot say,” Tosafot continues, “that the robbers are liable because they cannot fulfill the commandment of returning it, since payment comes from the animal’s own body.” Yes, perhaps we are dealing with an innocuous ox that they stole, and then it went and caused damage. Now, in terms of the acquisition they have in the ox, it is not full acquisition; it is not enough to make them liable for the damages of the ox. But if this is an innocuous ox that caused damage, then payment comes from its own body, so now they can no longer return this ox to the owner. Because what are you giving back to the owner—an ox from which payment will then be taken from its own body? You did not return to me the ox you stole. Therefore in such a situation, Tosafot says, perhaps the bandits’ ownership of the animal becomes complete. Because the owner no longer has any share in it, since it can no longer be returned to the owner; the bandits’ obligation to the owner has become merely a monetary obligation. The object is now entirely the bandits’. Entirely—not just through theft-acquisitions, but entirely theirs. And therefore they would also be liable for damages.

Tosafot says: one could say that regarding horn-damages by an innocuous ox, because payment comes from its own body. But you cannot say that here, “for the Mishnah is speaking about tooth and foot.” And here there is a full return when they return it to the owner. Tooth and foot involve monetary payment; it is not taken from the body of the ox. So whoever has to pay can pay, but the ox itself can be returned to the owner. So if that is so, the question still remains: how does the Talmud assume that the bandits’ ownership of the ox is absolute ownership, to the point of responsibility even for its damages?

And how do I know that the Mishnah is speaking about tooth and foot and not horn? Remember? Right at the beginning of the chapter, when the Talmud there discusses whether minimal guarding is enough or whether superior guarding is required, if you remember. There we distinguished between an innocuous ox and a forewarned ox, and tooth and foot, where the Torah was lenient about their guarding, and therefore it is enough that one locked it properly. So we see that the Talmud itself interprets the Mishnah as dealing with damages of tooth and foot, and about that the Mishnah says that if bandits took it out, the bandits are liable. Meaning, it is not talking about an innocuous ox; it is talking at least also about damages of tooth and foot. So if it is damages of tooth and foot, we are back to saying that they have theft-acquisitions. And about that Tosafot asks: who told the Talmud that these theft-acquisitions are so absolute that they also obligate them for responsibility for the damages of the ox?

“And one can say,” Tosafot says, “that it is logical that a robber enters in place of the owner. Since he removed it from the domain of the owner, who had been obligated in guarding it, and the owner cannot guard it because it was stolen from him, the robber must guard it. For regarding damages, anyone in whose power it is to guard it is called the owner. And this is not similar to the injured party’s taking hold of it according to Rabbi Akiva, for even an unpaid guardian is not over his fellow’s share, and a partner intends to hold only his own, and does not come to remove his fellow’s share from his domain as a robber does.” Yes—a robber is not a partner with the owner. He intended to remove the whole thing into his own domain. So you cannot say that he is holding only part of the animal, even though on the level of ownership there is still some part belonging to the owner; the robber—certainly the Torah imposes full responsibility on him for damages, unlike a partner.

“And furthermore, since the robber stands in his own domain also regarding unavoidable accidents, he is considered more of an owner than a partner. And this is implied by the language that it stands in his domain for all purposes.” The fact that it is “in his domain for all purposes” has significance here. Tosafot says this is also precise in the Talmud’s wording. The Talmud says that once they took it out, it stands in their domain. Why not stop there? Why does the Talmud add these two words, “for all purposes”? What does “for all purposes” mean? Because the Talmud itself, Tosafot says, was troubled by my question. “It stands in their domain” is very nice, but that only concerns theft law. You still have an obligation to return the animal to the owner. And if so, then the animal really belongs to the owner—or also to the owner. At most, with these theft-acquisitions you are in some sense a partner with the owner. So if that is so, who said you are responsible for the animal’s damages? Therefore the Talmud adds those two words: “for all purposes.” It stands in their domain for all purposes. It is theirs in every respect, including responsibility for the damages the animal causes. And why? Tosafot says: because it is logically reasonable that the Torah sees the robber as the owner regarding damages, because he is the one who can guard it.

What happened here as compared to the initial assumption? In the initial assumption he said that one cannot learn this from a guardian, right? Because a guardian is a matter of contract, and with a robber there is no contract. What is he saying now? What does “it is logical” mean? There is no contract, true—but regarding a robber, the Torah itself imposes responsibility on him for the animal’s damages even though there is no contract. Now in Tosafot’s conclusion, he might say the same thing about a guardian too. Because if Tosafot’s reasoning is that anyone who can guard—this is not a sanction against the robber because he was wicked, but simply on the factual level he is the one who can guard. “Since he removed it from the owner’s domain, and the owner cannot guard it because it was stolen from him, the Torah places the obligation to guard on you.” Right? That’s what Tosafot says. That is true of a guardian as well. A guardian is not a criminal; he is nothing of the kind. It is just a contract, and everything is legitimate and proper. And still, when you ask yourself where the animal is—the animal is with the guardian. Can the owner guard it? That it should not cause damage, not that it should not be damaged? No, obviously not; he may be a hundred kilometers away from it. Right? So if the owner cannot guard it, by the same reasoning I would expect Tosafot to say that the Torah also imposes the guarding responsibility on the guardian.

And therefore I say, against what Tosafot assumed in his question, that with a guardian this is a contractual obligation and therefore one cannot derive from him to a robber—once Tosafot concludes that there is logic here in the case of a robber even without contract, there is definitely room to say that now Tosafot retracts from his own conception regarding a guardian’s obligation as well. And now a guardian too, who becomes liable for damages caused by an animal in his possession, is not liable by force of his contract with the owner, but because the Torah sees him as responsible for the animal’s damages. But the contract itself is really only a contract that the animal not be harmed, not that it not cause harm. And again, the practical difference is to whom the injured party turns. According to this conception now, the injured party turns directly to the guardian, not to the owner, because the Torah made the guardian responsible for the animal’s damages, because only he can guard it. So it may very well be that the difference between Tosafot’s initial assumption and his conclusion was actually not about a robber at all. It was about a guardian. What changed in Tosafot’s conception between the question and the answer is how I understand the obligations of a guardian, not how I understand the obligations of a robber. The question is whether the guardian’s obligation is contractual, in which case the difficulty arises because you cannot compare the robber to the guardian; or whether the guardian’s obligation is based on logic, because the animal is with him and the owner cannot guard it, and therefore the Torah sees him as responsible. And if so, then one can learn robber from guardian—and all the more so, with a robber it is definitely so. Meaning, it comes out that the difference between Tosafot’s question and his answer is really in the conception of why a guardian is liable, not why a robber is liable. Once the conception regarding a guardian changed, then automatically you can learn the robber from him as well.

But notice what Tosafot assumes throughout. Tosafot assumes throughout that a robber’s ownership is not full ownership. As an owner, he is not enough of an owner to impose on him responsibility for the animal’s damages, even though he has theft-acquisitions, there was despair and change of domain. But he is not enough of an owner for responsibility for the animal’s liabilities to be imposed on him. Responsibility for the animal’s liabilities is imposed on him as a special obligation because he is the one who can guard the animal. And the practical difference in the case of a guardian is that a guardian is not an owner of the animal at all, but since the responsibility is on him, the Torah places on him the responsibility to guard. But that is difficult in the Talmud. It is difficult in the Talmud because the Talmud ties it to the fact that it stands in his domain for all purposes. It is very difficult to say that in Tosafot’s conclusion everything depends only on the robber just like on the guardian—you need not be an owner at all; the robber’s ownership is irrelevant to the matter. The mere fact that it is with you and the owner cannot guard it, only you can, makes the Torah say: if so, the responsibility is on you. If that were Tosafot’s conception, it would be hard to read that into the Talmud. Because the Talmud says: why is it obvious that if they took it out, they are liable? Because it stands in their domain for all purposes. Rashi says: because they acquired it by despair and change of domain, and Tosafot too says: because only when they intended to steal it. After all, Tosafot’s whole question began from where? From the Jerusalem Talmud, which says that they are liable only if they intended to steal. Why does it matter whether they intended to steal or not, for our purposes? Clearly, if they intended to steal, then they acquired it and therefore the animal is theirs. So we see that the acquisition too is part of the story here. It is not only the factual reality that the animal is with you and only you can guard it and not the owner. Rather, it is some combination.

And the combination is: first of all, you are an owner. What is the scope of that ownership? One could have said that from the standpoint of theft law itself, the scope of ownership does not include responsibility for the animal’s damages. But logic suggests that if the animal is with you and the owner cannot guard it, I make you the owner also for this purpose. Meaning, in the end it emerges from the theft-acquisitions. But Tosafot asks: how is the Talmud so certain that theft-acquisitions include responsibility for guarding against damages? That is because of this reasoning—that it is not reasonable that the Torah would remove responsibility. After all, the Torah established the theft-acquisitions. How do we know that a robber has acquisitions? The Torah defined theft-acquisitions. So it is not reasonable that the Torah exempted him from responsibility for damages. Clearly, when it defined him as an owner, that included the responsibility for the animal’s damages. So in the end, according to Tosafot, it is a combination of the two things. Basically, the robber is liable as an owner, but theft-acquisitions in themselves do not include responsibility for damages. Responsibility for damages is a special extension that the Torah makes because of the very reasoning Tosafot wrote here, which is learned from a guardian.

Okay, and now I’m no longer entirely sure that Tosafot retracted regarding a guardian, because with a guardian… there is no ownership dimension. With a guardian there is only this reasoning that no one else can guard except you; the owner cannot guard. And according to Tosafot, that reasoning by itself is not enough. Right? Because according to Tosafot, that reasoning only works with the help of the fact that the robber is an owner. Without their being owners, that reasoning by itself is not enough. Otherwise it is hard to read the Talmud, because the Talmud ties it to the fact that they are owners. So with a guardian, how does it work? After all, with a guardian there is no ownership. So how does the reasoning that he is the one who can guard suffice to obligate him?

The answer is: parallel to the robber, the same thing. The obligation is a contractual obligation, just as Tosafot understood in the question. The obligation is contractual. But who determined the contract? The Torah determined the contract. And who determined the obligations of an unpaid guardian, a paid guardian, and a borrower? The Torah determined their laws. That is as long as they did not stipulate otherwise. If they stipulated, they can do whatever they want. But as long as they did not stipulate, the Torah established the parameters of the contract. So Tosafot apparently says that the Torah also established the parameters of the contract in such a way that they include tort liability. Because on whom else would it place the responsibility of guarding? So it is obvious to us that when the Torah established the guarding contract, it included within it responsibility for damages as well. It is not reasonable that the Torah established the contract of guarding but left tort responsibility open, and then no one would be responsible here. That cannot be.

So the consideration is parallel to what we see with a robber, but it is not true that with a guardian there is no contractual dimension. The contractual dimension remains even in Tosafot’s conclusion regarding a guardian. With a robber it is the proprietary dimension; with a guardian it is the contractual dimension. And the acquisition in the case of a robber, and the contract in the case of a guardian, are interpreted according to the logic of this reasoning, which says that the Torah places the responsibility of guarding on the one who can guard. And so either it puts that into the contract of guarding, or it puts that into the proprietary rights—or proprietary obligations, in this case—of the robber. Because both of these are definitions of the Torah. Both the ownership of the robber and the contract of the guardian…

A practical difference, for example: what happens if the parties stipulated otherwise? They made a contract not according to the Torah’s default model for a guardian. After all, they can stipulate whatever they want. There is room here to discuss whether, in a contract we made that is different—not the Torah’s ordinary contract—it includes tort responsibility or not. It is not obvious that it would include tort responsibility if I did not stipulate it. Because the reasoning alone—the reasoning that only you can guard and I cannot—Tosafot seems to imply that by itself it is not enough. That alone is not enough to obligate. Of course one can elaborate and say that once I made a contract with you, and obviously the responsibility for guarding against damages is on me, then presumably that included guarding against damages as well. What, am I crazy? After all, I cannot guard the animal. But that is already an interpretive consideration, and on the principled level you need interpretive considerations for that. It is not automatic that once we made a contract, then you are responsible for the… you have tort responsibility. Okay? If the Torah imposes it on whoever can guard, then it is automatic.

All right, it looks like we’ll stop here. We’ll stop here. Of course I’ll continue next time, but we’ll stop at this stage. Thank you very much. Thank you very much, Rabbi. Have a good holiday, and a happy Hanukkah.