The Receiver Chapter – Lesson 10

Table of Contents

• Bandits drove it out, and the need for two components in order to impose liability
• Shulchan Arukh 396, סעיף 3, and the Jerusalem Talmud: drove it out to steal it versus drove it out to destroy it
• Explaining the language of Tosafot: “for purposes of damages, anyone who has it in his power to guard it is called the owner”
• Rashba: the robber’s full ownership and straightforward liability under the law of one’s property causing damage
• Guardians according to Rashba: “they accepted it upon themselves” and liability by force of undertaking
• The Sma and the Ir Shoshan: an explicit dispute between Tosafot and Rashba
• Modes of acquisition in robbery: despair, change, and the status before the change
• Rashi: “there is pulling and change of domain,” and his alignment with Rashba’s approach
• Sanhedrin 72: “the Merciful One placed them in his domain regarding unavoidable accidents”
• Kovetz Shiurim, section 14: change acquires through the lapse of the duty to return, and the connection to “kim lei”
• Ketubot 31: pulling in the public domain and acquisition only for liability for unavoidable accidents
• “It was necessary only for a case where they stood before it”: moving from the simple case to the continuation of the passage

Summary

General Overview

The passage examines when a person becomes liable for damage caused by an animal that is not his, in contexts such as bandits who drove out an animal, someone who places another person’s animal onto another person’s standing grain, and the laws of guardians. It does so while analyzing Tosafot’s approach as opposed to Rashba’s regarding the source of liability: whether it stems from contract in the case of guardians and from acquisition in the case of a robber, and what role is played by the reasoning that “whoever has it in his power to guard it.” The conclusion is that two components are needed in order to impose liability for damage caused by property that is not one’s own, and it is emphasized that physical ability to guard it alone is not enough; some additional foundation is required, such as acquisition or contractual undertaking. Later it becomes clear that the Tosafot–Rashba dispute reflects a deeper conception of the nature of robbery-acquisitions before an additional change after despair, and whether ownership at that stage is full or limited mainly to liability for unavoidable accidents.

Bandits drove it out, and the need for two components in order to impose liability

It is said that according to Tosafot there is a similarity between a guardian and a robber in that the Torah imposes responsibility on the person in whose hands the object is found, but that reasoning alone is not enough to impose liability for damage caused by an animal that is not his. It is established that in the case of guardians, the additional component is the contract between the depositor and the guardian, and in the case of a robber, the additional component is acquisition, while the reasoning serves to shape the scope of the contract or the scope of the acquisition so that they include tort liability as well. A practical implication is presented regarding whom the injured party sues: if the liability is contractual, the injured party sues the animal’s owner, and the owner then proceeds against the guardian; but if the Torah imposes direct tort liability on the possessor, such as a robber by force of his acquisition, then the injured party sues the robber.

Shulchan Arukh 396, סעיף 3, and the Jerusalem Talmud: drove it out to steal it versus drove it out to destroy it

The halakhah is cited as follows: “If bandits drove it out, they are liable from the moment of pulling, or if they struck it with a stick in order to drive it out; and this is specifically where they drove it out in order to steal it, but if they drove it out in order to destroy it, they are exempt.” From here it is learned that liability depends on an act that establishes a robbery-acquisition, and therefore if they drove it out in order to destroy it, they do not acquire it and do not become owners, and are consequently exempt from liability for its damages, just like one who breached a fence in front of another person’s animal. It is argued that if the reasoning “only they can guard it” were by itself sufficient to impose liability, there would be no room to distinguish between taking it out for theft and taking it out for destruction. So this proves that the reasoning does not operate without some acquisitional or similar component.

Explaining the language of Tosafot: “for purposes of damages, anyone who has it in his power to guard it is called the owner”

Tosafot is quoted as interpreting the Mishnah as dealing with a case where “he drove it out in order to steal it,” and asking how we know that the robber is liable even for damage that the animal causes. Tosafot answers with the reasoning that the robber steps into the place of the owner because he removed it from their domain and the owners can no longer guard it. Tosafot concludes that “for purposes of damages, anyone who has it in his power to guard it is called the owner,” and it is said that this language may sound as though it ignores the question of blame, but it is clear that the intent cannot be mere physical ability. Rather, the point is the framework in which the robber removed the animal and serves as the sole candidate for responsibility by virtue of his status. There remains an internal disagreement in the lecture as to whether Tosafot primarily grounds this in the robbery-acquisition expanded to include damages, or also in a dimension of moral blame.

Rashba: the robber’s full ownership and straightforward liability under the law of one’s property causing damage

Rashba is cited as explaining, “since he removed it, the standing grain came into his domain, for all purposes,” and in the simple sense he ties the liability to the fact that the robber becomes the owner for unavoidable accidents “for all purposes, and even with respect to payment for the damages it causes,” without needing the reasoning of “who can guard it.” It is argued that Rashba sees the robber’s ownership as full ownership, and therefore liability for the animal’s damages is just the ordinary application of the laws of property damage: his property caused damage, and he is liable. Rashba adds that the law applies even to the damages of an ox that is tam, whose payment comes from its body, and not only to eating and trampling, where payment comes from the general estate. And even if the animal was later returned to the owner, liability for its damages takes effect from the moment of pulling.

Guardians according to Rashba: “they accepted it upon themselves” and liability by force of undertaking

Rashba writes that “even with ordinary guardians, from the moment of pulling they became obligated in guarding it against causing damage,” and it is emphasized that his language, “they accepted it upon themselves,” implies contractual liability that the guardian takes on. According to this line, there is no need to say that the Torah imposes direct tort liability on the guardian the way it does on the robber; rather, the guardianship contract itself includes guarding the animal from causing damage. On this view, the injured party sues the owner, and the owner can then proceed against the guardian by virtue of the undertaking between them.

The Sma and the Ir Shoshan: an explicit dispute between Tosafot and Rashba

The Sma on 396 is cited as explaining that the robber is liable for the animal’s damages “even though the robber does not acquire it through pulling, because who told him to pull it,” but rather, “since he did with it an act that acquires in buying and selling, and it is now in his domain, he is liable for guarding it,” and the Sma attributes this to Tosafot and the Rosh. The Sma rejects the Ir Shoshan, who wrote that “they are liable because he acquired it by pulling,” and it is presented that the Ir Shoshan follows Rashba’s line of a full acquisition that automatically generates liability. It is said that this puts two separate approaches squarely on the table: liability by force of full ownership, as opposed to liability for damage as a derivative of expanded responsibility based on the object being in his domain, even without full acquisition.

Modes of acquisition in robbery: despair, change, and the status before the change

A general pattern of robbery-acquisitions is presented, according to which “despair alone does not acquire,” and full acquisition appears only after despair plus some additional change, such as change of domain or change of name. At that point the duty to return the object itself lapses, and the robber instead returns money. The disputed point is then described: what is the status after the robbery and after despair but before the additional change, when on the one hand there is still a duty to return, while on the other hand there is liability for unavoidable accidents, which indicates some acquisitional dimension. Tosafot is understood as defining an intermediate stage in which there is no full ownership, only limited ownership mainly regarding unavoidable accidents, and extending tort liability requires some further justification. Rashba and Rashi, by contrast, are understood as recognizing full ownership already at this stage, with the duty of return being a separate lien.

Rashi: “there is pulling and change of domain,” and his alignment with Rashba’s approach

Rashi explains the phrase “it stands in his domain for all purposes” by saying that here “there is pulling and change of domain, so that it is acquired for all purposes,” and it is said that this language is surprising, because change of domain is usually understood as sale to a third party. A possible explanation is suggested: Rashi sees the object’s transfer from the victim of the robbery to the robber himself as a change of domain in terms of ownership, while the later sale serves mainly to eliminate the duty of return and the direct connection to the victim. From here it is inferred that Rashi fits into Rashba’s approach of early full ownership that gives rise to straightforward tort liability under the law of one’s property causing damage.

Sanhedrin 72: “the Merciful One placed them in his domain regarding unavoidable accidents”

The passage of “one who comes in through a tunnel” is cited, where Rav says, “he acquired them at the cost of his blood,” and Rava narrows this, and the Gemara concludes: “the Merciful One placed them in his domain regarding unavoidable accidents, but regarding transferring ownership, they remain in their owner’s domain, similar to a borrower.” This distinction serves as a source for the idea that liability for unavoidable accidents does not require full ownership for purposes of transfer, similar to a borrower who is liable for unavoidable accidents but is not the owner. It is emphasized that from here one can ground the Tosafot–Rosh line that at a certain stage the acquisition is functional for liability for unavoidable accidents, rather than full ownership.

Kovetz Shiurim, section 14: change acquires through the lapse of the duty to return, and the connection to “kim lei”

Kovetz Shiurim is cited as asking how we derive from the verse “and he shall return the stolen item that he stole” that change acquires, and he answers that the lapse of the law of return itself is what generates acquisition: “once the law of return lapses, it is automatically acquired by the robber from the original robbery.” He brings proof from the Sanhedrin passage that one who comes in through a tunnel acquires by force of “kim lei be-rabba minei,” because he is exempted from return, and concludes that the very obligation of return is what prevents the acquisition from being fully realized. The discussion continues by saying that Rava disagrees not about the principle of acquisition, but mainly about whether “kim lei” also exempts one from returning the object itself, while the fundamental assumption remains that without the obligation of return, the robber would acquire it.

Ketubot 31: pulling in the public domain and acquisition only for liability for unavoidable accidents

Tosafot in Ketubot is cited as explaining that Ravina, who said that a robber acquires by pulling in the public domain, means “for purposes of becoming liable for unavoidable accidents, but he does not acquire it so that it is entirely his,” so as not to disagree with Abaye and Rava, according to whom in buying and selling, pulling does not acquire in the public domain. The view of Ritzpa is also brought, seeing this as a dispute among the Amoraim and interpreting it as full acquisition. This passage joins the larger picture in which Tosafot’s view distinguishes between a functional acquisition for liability for unavoidable accidents and full ownership.

“It was necessary only for a case where they stood before it”: moving from the simple case to the continuation of the passage

It is said that the Gemara determines that “since they drove it out, it stands in their domain for all purposes” is obvious, and therefore the Mishnah comes to teach the novel case of “it was necessary only for a case where they stood before it,” which Rashi explains as meaning that they did not pull it, but merely stood on every side and led it in a certain direction so that it would eat. It is emphasized that here there is no pulling and no robbery-acquisition, and so the question returns: why are they liable, if in the case of bandits who breached a fence they are exempt? Two explanatory paths are then opened: either liability as direct involvement in the damage, similar to someone who places another person’s animal on another person’s standing grain, or the creation of responsibility/ownership for purposes of damages by force of blame and the fact that they are the only ones who can bear responsibility. The stated goal of what follows is to compare breaching a fence, driving it out by pulling, standing before it, and placing it onto standing grain, and to clarify in each approach whether the liability is under the law of personal damage or property damage, and what the criteria are regarding blame, ownership, pulling, contract, and expansion of the scope of responsibility.

Okay, we’re in the topic of “bandits took it out” and the law of someone who places another person’s animal in another person’s standing grain. At the end of the previous lecture we saw the approach of Tosafot regarding the liabilities of a guardian and a robber with respect to liability for damages. And the claim basically was—the conclusion, at the end, was—that there’s a difference between a guardian and a robber, but there’s also a similarity between them. In both cases there’s the reasoning that the Holy One, blessed be He, or the Torah imposes responsibility on whoever has the animal in his hands to guard it. But that reasoning by itself isn’t enough. Meaning, by itself it isn’t enough to impose liability, and you need to add another element to it. In the context of the laws of guardians, that element is apparently the contract, and in the context of the laws of a robber, that element is ownership acquisition. A robber has an acquisition, and we use that reasoning to define the scope of the acquisition. And we say that if the Torah already gave the robber an acquisition, then presumably it included in that also liability for damages, because the robber is the one who can deal with it—he can bear responsibility for the matter. So on the one hand you need his ownership, and the reasoning only defines the scope of the ownership and brings into it the liability for damages. In the context of a guardian, the additional component is the contract. Once there is a contract between the guardian and the depositor, the Torah—which in any case shapes the laws of guardians—expands the guardian’s obligation and includes within it liability for damages as well. Though there is still room to hesitate regarding a guardian: at the end of the day, in bottom-line terms, is this the result of contract law? Meaning, it’s a result of the contract, except that the Torah inserted into the contract between the guardian and the depositor also the matter of liability for damages. Or does the Torah make the guardian responsible for damages on its own account, not because of the contract? Simply speaking, it seems to me that in Tosafot it looks like this is a contractual obligation. And I said that the practical difference is whom the injured party sues. If the obligation is contractual, then the injured party goes to the owner of the animal, and the owner of the animal will have to pay him. If he has a contract with a guardian and the guardian was negligent, then after the owner pays, he will sue the guardian and they’ll settle between themselves by force of the contract, but the contract itself has nothing to do with the laws of damages. In the laws of damages, the owner of the animal is responsible for what the animal does, and if something happened, they sue him. By contrast, if this is liability for damages that the Torah itself imposes not by force of contract—like in the case of a robber, because of the acquisition and the like—then the injured party should sue the robber and not the owner of the animal. The owner of the animal has no contract with the robber; the Torah imposes direct liability on the robber, direct liability for damages on the robber, and therefore the injured party should sue him. Now I just want to make one more point that I didn’t get to last time, to show the necessity of these two components. So look: in the Shulchan Arukh, in section 396—I’m sharing the file—section 396, paragraph 3: “If bandits took it out, they are liable from the time of pulling, or if they struck it with a stick in order to take it out. And specifically when they took it out in order to rob it, but if they took it out in order to destroy it, they are exempt.” “Struck it” is the Gemara later on, which we’ll still get to. But the qualification that the Shulchan Arukh brings at the end is the Jerusalem Talmud that Tosafot brought at the beginning of its comments, where the Jerusalem Talmud says that they become liable only if they took it out in order to rob it—that is, when “bandits took it out,” not when they merely breached the enclosure. When bandits took it out, bandits are liable—when? If they took it out in order to rob it. But if they took it out in order to destroy it, they are exempt. That’s what the Shulchan Arukh brings. Now what does that really mean? It basically means that the liability of the bandits is because the bandit is an owner, and once the bandit didn’t pull it in order to rob it—in other words, if he isn’t really acting as a bandit—then he didn’t acquire it. And once he didn’t acquire it, he isn’t liable for the damage. Because if they took it out in order to destroy it, they didn’t acquire it, they don’t become its owners, they aren’t bandits in the legal sense, they’re just someone who breached a fence in front of another person’s animal, and therefore they’re exempt. Now if you take Tosafot that we saw at face value—where Tosafot says that basically the Torah places the animal in the domain of the bandit because only the bandit can be responsible for it, since the owner no longer has it, what can he do? Therefore the Torah imposes responsibility on the bandit—if that reasoning were the determining reasoning for the obligation, there would be no room to distinguish between taking it out to rob it and taking it out to destroy it. What’s the difference? At the end of the day, as long as they took the animal out, then presumably the Torah should impose on them responsibility for its damages, because what difference does it make what their motivation was when they took the animal out? Practically speaking, the animal is no longer with me; the animal is under their control, and now the only ones who can be responsible for its damages are they. So what difference does it make whether they took it out to rob it or took it out to destroy it? And I remind you that Tosafot itself brings this Jerusalem Talmud. That’s Tosafot’s point of departure. How does that fit with Tosafot’s statement that the reasoning is basically that the Torah places the animal in the bandits’ domain because only they can be responsible for it? We’re forced to say what I said before: that this reasoning can’t play on the field by itself. This reasoning alone isn’t enough to obligate a person for damages caused by an animal that isn’t his. The fact that only he can guard it—fine, only he can guard it. Let’s say I happened to walk past someone’s house, and the person was under duress—they took him somewhere, I don’t know exactly what—he couldn’t supervise his animal, and I happened to be passing by his house. So who is the only one who can guard the animal? Only me, right? He’s under duress, he can’t be there in the area, and I passed by there. Would anyone imagine that because of that, if the animal went out and caused damage, they’d obligate me? Tosafot’s reasoning seemingly exists here too. Who can you obligate? After all, only I could have guarded the animal. Obviously not. You need some additional component here; that reasoning isn’t enough, and that component can be connected to an element of blame, because a robber is blameworthy. With a guardian there’s a bit more room to hesitate whether there is an element of blame here or not. But it seems that in Tosafot, and also in the Gemara, it makes more sense to connect this to acquisition in the case of a robber and to a contract in the case of a guardian. And therefore I think this is a good indication. I said this also from Tosafot itself when it exempts based on the Jerusalem Talmud, but here it’s brought as practical Jewish law in the Shulchan Arukh, and as it appears it’s pretty clear that the Shulchan Arukh means to say this also within the view of Tosafot. Meaning, it’s basically clear to him that in Tosafot this does not mean physical ability. It’s clear that it doesn’t depend on that. Also in the other direction: if someone besides the bandits could have guarded it, that wouldn’t exempt them. I think what he meant in saying that only he can guard it is that when we come to impose responsibility for guarding, then they are the only candidates for that task—the bandits in this case. Why? Why are they the candidates? Fine, that Tosafot doesn’t explain; you’re supposed to understand that on your own. That’s what I’m saying. You take an animal away from its natural guarding, you remove all the protections, so now it’s you. But that still isn’t physical ability. You said something too general here—what do you mean, now it’s you? It can be understood in two ways. It can be understood because of blame, and it can be understood because of ownership. No, I think the two are dependent on each other. The ownership is relevant in terms of blame, because it isn’t ownership for every purpose, this ownership of bandits. No, no, the ownership of a robber isn’t the issue right now—the ownership of the robber is measured independently of liability for damages. It’s also connected to blame. No, but the ownership of the robber isn’t connected to liability for damages; it’s connected to liability for unavoidable accidents. That’s an expansion of the ownership, right, an expansion of the ownership into this field—but why does that happen? It happens because of blame, obviously; it doesn’t happen for no reason. Again, the expansion of the robber’s ownership stems from the reasoning that since he is the owner and only he could have guarded it, they impose responsibility on him. Not because he is the owner—it’s the other way around. He becomes owner, even with respect to the robbery itself, because he is supposed to guard it. No, no, that’s a mistake. The fact that he becomes owner with respect to the robbery itself—that’s exactly what Tosafot asks. The fact that he becomes owner with respect to the robbery has nothing at all to do with liability for damages. The fact that he becomes owner with respect to the robbery is perhaps—we’ll still discuss this later on—perhaps in order to obligate him for unavoidable accidents. Right, but unavoidable accidents are vis-à-vis the robbed owner. Now Tosafot asks— No, the robbery is because he’s supposed to guard it? No, no, mistake. The fact that he becomes owner with respect to the robbery—that’s exactly what Tosafot asks. That his becoming owner with respect to the robbery has nothing at all to do with liability for damages. Right. The fact that he becomes owner with respect to the robbery is perhaps—we’ll still talk about this later—perhaps in order to obligate him for unavoidable accidents. Right. But unavoidable accidents are vis-à-vis the robbed owner. Now Tosafot asks: how does that connect to liability for damages vis-à-vis an injured third party? And the answer is that it doesn’t connect? Right, it’s simple. No. It does connect. Since once there is responsibility, once there is acquisition—when the purpose of the acquisition is liability for unavoidable accidents—that’s not connected. But once there already is an acquisition, then I expand it, on the basis of Tosafot’s reasoning, also with respect to damages. But the reasoning, simply speaking, doesn’t have to be compelled. The reasoning doesn’t have to include blame. The reasoning can include: once you are already the owner for some purpose, for some other reason, and after all you’re the only one who can guard the animal. The question is simple: if he weren’t blameworthy, would we also extend it to this area? I think it’s definitely possible that yes. I don’t think so. Why? He’s an owner. Okay, I think that’s not so, because it’s arbitrary—you can say, you can split ownership. After all, we see in the case of a robber that he becomes owner for everything. So say he’s owner only regarding certain things. That it’s possible is obvious. What I’m claiming is that it’s possible not to say that. Meaning, once there is ownership, you don’t have to resort to blame in order to define his obligation. I understand, I understand. I want to suggest that Tosafot didn’t mean all this; it meant something conceptual. But what I’m saying is that at the principled level there’s no necessity to resort to the question of blame, since once there is already ownership, maybe there’s also the question of blame. But Tosafot can be interpreted as meaning that when it says “can guard.” “Can guard” means he is the person who morally is considered by us the relevant person, and therefore we extend it. Let’s look for a moment at Tosafot’s wording; right now I don’t remember. Let’s see. I remember that this is what occurred to me when you first read Tosafot here, so I asked myself the question, and that seemed to me the simple explanation. Let’s look—I’ll share Tosafot for a moment. It doesn’t matter that much, because as far as I’m concerned both possibilities definitely exist; I just want to say that the second possibility also exists. Meaning, you don’t need to get to the question of blame. “It is obvious: once he took it out, it stands in his domain for all purposes. The Mishnah is speaking of taking it out in order to rob it, as is proven by the Jerusalem Talmud. And if you say: from where does it know that it stands in his domain even for becoming liable for what it damages? For that is how it is interpreted, that it teaches: ‘and it went out and caused damage.’ For it cannot be said that this is derived from one who gave it over to an unpaid guardian or a borrower, because it cannot be learned from guardians.” Here the assumption is clearly not like that. Right? Meaning, here the assumption is that despite the fact that he is blameworthy—sorry, despite the fact that he is owner—who says the ownership also includes liability for damages? Meaning, the robber’s ownership itself has nothing to do with liability for damages. It’s connected to liability for unavoidable accidents, perhaps—or we’ll see in a moment. But that is a given. Now I ask: okay, but who says that this also includes liability for damages? And to that: “And it can be said that it is logical that the robber enters in place of the owner, for since he removed it from the owner’s domain, and the owners were obligated in guarding it, and the owners cannot guard it since it was robbed from them, the robber must guard it. And for purposes of damages, whoever has it in his hand to guard is called owner.” At the beginning there are two sentences here, one of which sounds like Binyamin and the other like me, because he says, “since he removed it from the owner’s domain.” A bit of a tone of blame, right? They removed it from the owner’s domain, where the owner had been obligated to guard it. But then there’s an addition: “and the owners cannot guard it.” Why do you need that? Because blame alone apparently isn’t enough; there’s some reasoning here that says: who can guard it here? The owner can’t guard it, only they can guard it. And then he says, “the robber must guard it,” and now look at his summary, the general reasoning: “for purposes of damages, whoever has it in his hand to guard is called owner.” Here this is already really a statement that ignores the question of blame. Meaning, whoever has it in his hand to guard is considered owner. Now true, I already qualified this in any event, because I said: what do you mean? But if I happened just by chance to be passing his house and he was under duress and only I could guard it, I assume Tosafot doesn’t mean to say I’d be responsible for its damages. Clearly there’s some role being played here by the robbery. But it seems to me that in the plain reading of Tosafot, the role is the acquisition involved in robbery, not blame. Let’s say the robber wouldn’t acquire at all for some reason, but there would still be the blameworthiness of a robber—say the Torah didn’t define acquisitions of robbery, but obviously he would still be blameworthy; he robbed, okay? I’m claiming that according to Tosafot, in such a case I don’t think he would have liability for damages. But if there were—then it starts the other way around. The other way around: if you decided to impose liability for damages on him, you would call that that he acquired it with respect to robbery law. It’s the reverse. But Tosafot started the other way around. Tosafot says, after all, that he acquired it with respect to robbery law, and then asks: who says that includes liability for damages? He said, that’s true, and his answer is that in fact there’s no dependence between the two—that’s how I understand him. He said: there is no dependence between them. It’s simply because there is a rationale that he’s responsible for this too, and therefore I say that he acquired it also with respect to— No, the opposite. But he says “whoever has it in his hand to guard.” “Whoever has it in his hand to guard” would seemingly also include someone walking past the house. So Tosafot obviously meant both things: both that he has it in his hand to guard and that he took it out. So those two together are enough of a rationale for him to be owner with respect to damages. These are two conditions. I’m saying again: I think the plain meaning of Tosafot is that he ties it to acquisition. Whether there is an element of blame or not is open in my eyes. At the moment I incline to think that the plain meaning of Tosafot doesn’t need that, but that’s a different discussion. Okay. I agree that acquisition is important here; I’m just saying it’s the reverse. The acquisition is the result—after you obligate him, then you call it acquisition. No, no, the acquisition isn’t a result. The acquisition is a given that exists even independent of liability for damages. No, according to the Nimukei Yosef I mean, the acquisition there isn’t relevant—that’s how I understand Tosafot. No, it is relevant. Because there is acquisition with respect to liability for unavoidable accidents, we then expand it by force of this reasoning also to liability for damages. And without that we would not have expanded it. Fine, that sounds strange to me. Also in Tosafot three—you also see in Tosafot, and you also see in the Gemara. After all, we inferred that from the Gemara too. The Gemara says: since—how does it go there? Since they pulled it, then it is theirs for all purposes, right? What’s the wording of the Gemara there? “It is obvious: once they took it out, it stands in their domain for all purposes.” Since they took it out, then it stands in their domain for all purposes. Simply speaking, this doesn’t talk about blame. It talks about acquisition: “it stands in their domain”—it is theirs for all purposes. You can say “since they took it out” means wickedly, meaning they were at fault, they took it out in order to rob it, but simply speaking I don’t think so. Both in Tosafot and in the Gemara, it seems to me the simpler explanation is without regard to the question of blame. Once there is acquisition, we then expand it on the basis of this reasoning so that it includes liability for damages as well. My claim is broader: I’m saying that in general acquisition is always the result of blame. If I take your animal out of your domain, I don’t acquire it. That happened only because I’m a robber and I’m blameworthy. The acquisition itself is simply a result of the logic of blame. It always starts from the reasoning. No, but again, the acquisition starts even without this. I’m repeating this point again and again. No—why? If I take someone else’s animal out, have I acquired it? Only if I’m a robber do I acquire it. Obviously—because there are acquisitions of robbery with respect to liability for unavoidable accidents. Why specifically a robber? Because he’s blameworthy. So it always starts the other way around. First blame. Right, but he is blameworthy regarding the robbery, and therefore they give him acquisition with respect to unavoidable accidents. Right. But now the question is: what about acquisition with respect to liability for damages? No, I completely—I understood that. I don’t think we’re arguing. Fine, I understood you. Okay, good. In any event, this is explicit also at the end of Tosafot—it’s seemingly explicit. In the part we didn’t read, it’s explicit there that this is because of the acquisition for unavoidable accidents. Again? At the end of Tosafot it’s explicit. “And moreover, since the robber stands in his domain also with respect to unavoidable accidents, he should be considered an owner more than a partner.” He’s considered more of an owner than a partner because it stands in his domain. He also infers from the wording “for all purposes,” like the Rabbi says. “It stands for him for all purposes,” and he infers from the wording. Yes. No, Binyamin also agrees: it stands in his domain for all purposes because he is blameworthy, so because of the acquisition for unavoidable accidents they also put on him liability for damages. But that makes it one thing, and it seems that one thing causes all purposes—that’s what Tosafot brings, no? That the acquisition for unavoidable accidents is what causes all these things; it’s one cause. And according to Binyamin’s claim, it starts from blame. This whole acquisition starts from blame. After all, even the acquisition with respect to unavoidable accidents is obviously because of blame; yes, that can’t be detached. Fine. I’m saying again: I really think this is indeed the simple meaning of Tosafot. Right now I don’t really see a practical difference. We’d have to think whether there could be a robber who isn’t blameworthy. I don’t know—someone who robs somehow under duress or something like that. Unintentionally—maybe that enters as the topic of an unintentional thief. Me’ilah, yes—he took an animal belonging to the Temple treasury, committed misuse, something like that. So unintentionally the animal became—well, but then it really becomes fully his. So that’s not so impressive. I’m looking for partial ownership like that of a robber, not full ownership like in misuse of consecrated property where it goes out into the non-sacred sphere. No, just an unintentional thief—someone told him to take the animal, and he took it by mistake; he didn’t know from whom he was taking it. Okay, in any event—and can you still impose liability? We’d need an example of a thief under duress; that’s a good example. Maybe. Fine, in any event I don’t currently have a practical difference, or an indication of a practical difference, so for now we’ll leave both possibilities in place. In any event. In any case, up to here that was the view of Tosafot. Now let’s look, by way of comparison, at the Rashba. The Rashba—I uploaded it here: “It is obvious: once he took it out, it stands in his domain, and for all purposes.” That is: when he took it out in order to rob it, so that it stands in his domain with respect to unavoidable accidents and for all purposes, and even for payment of its damages. What is he saying here? Seemingly very similar to Tosafot, right? But I smell something different from Tosafot here. Because in the Rashba there isn’t a gap between the acquisition the robber has and liability for damages. He simply says: if they took it out in order to rob it, then it is in his domain with respect to unavoidable accidents and for all purposes, even payment of its damages. He doesn’t need all these supplementary rationales—who can guard it, after all it is under his control, the owner can’t guard it, and the Torah places it in the domain of the one who can guard it. According to the Rashba, once the robber is owner, then what’s the problem? These are the regular laws of damages. It’s your property, you are the owner, your property caused damage, so you are liable. Meaning, on the surface it resembles Tosafot, but the feeling is that it isn’t the same thing. Because in Tosafot I need the rationale in order to define the scope of the ownership, and only then—that is, the robber’s basic ownership is only with respect to liability for unavoidable accidents. Afterwards, since I have the rationale of who will guard the animal, who will be responsible for the animal’s damages, I expand the concept of ownership—or if you like, blame, according to what Binyamin suggested—I expand the concept of ownership also with respect to liability for damages. The Rashba doesn’t pass through that stage. According to the Rashba, what do you mean? Once they took it out in order to rob it, they acquired it, and once it is theirs, then this is damage caused by one’s property. Meaning, the one to whom the animal belongs is liable. In other words, the Rashba understands the robber’s ownership as full ownership. Tosafot quite clearly sees the robber’s ownership not as full ownership, but rather we extend it also with respect to liability for damages because there is no one else to guard it. But that’s an extension. Basically, according to Tosafot the definition of the robber’s ownership is probably not full ownership. It’s not that he is now considered simply the owner of the animal; otherwise no rationales would have been needed. If he is considered the owner, then automatically if his property caused damage he must pay. And that really is what appears in the Rashba. But the fact that Tosafot has to work hard and explain the relationship to guardians, and all this reasoning that he repeats three times—who will guard it if not he?—you see that in Tosafot every aspect of ownership requires its own rationale. It’s not that the robber becomes owner of the animal, period. And from then on you don’t need to add a word, because if his property caused damage he must pay. That is indeed how it seems from the Rashba—he really doesn’t add a word. Once they are owners, then obviously their animal caused damage and they are liable to pay. And then he says: “And not only for damages of eating and trampling, which are paid from one’s general assets, but even for damages of a forewarned-less goring ox, which is paid only from its body.” What is this addition? It isn’t a novelty. So therefore—that’s the implication. After all, in damages of an ox that is not yet forewarned, we saw this in Tosafot—in damages of an ox that is not yet forewarned, it’s simpler than eating and trampling. Because there the payment comes from the body of the ox. Once it’s paid from the body of the ox, if this ox gored and caused damage, then I can no longer return it to the owner. Because after all, I’m returning him a damaged ox; half the damage is already secured against the body itself for the injured party. So obviously in such a case I’ll have to compensate the owner, and this ox will remain with me. Therefore in the damages of an ox that is not yet forewarned it’s obvious that this ox basically becomes fully mine and I’m responsible for its damages and everything. The novelty is that even in eating and trampling, where there in the end payment is only from one’s general assets, meaning not from the body of the ox itself, so what’s the problem? I’ll return the ox to the owner; the ox belongs to the owner, and now the question is who has to pay the money for the damage—not from the body of the ox. I think what the Rashba means here is that he doesn’t disagree with Tosafot’s hierarchy; he just wants to say therefore, since this is an obligation by force of ownership, then what difference does it make whether it’s eating and trampling or payment from the body? On the contrary, even if it is paid from the body—sorry—even if it is a case of eating and trampling, in the end since I become liable as owner, I have to pay. That’s all. “And even if they returned it to the owners”—even if you returned the animal itself to the owners—“still, for payment of its damages they became liable from the time of pulling.” Again he sharpens this very strongly: from his standpoint this is full ownership. Even if you afterward returned the animal itself to the owners, that doesn’t interest me. As long as the animal was with you, you are full owner of it. Whether it’s damages of goring, or eating and trampling, whether in the end you return the animal to the owners and don’t pay them money but return the animal itself—that doesn’t matter. As long as the animal is under your control, you are the owner. If you are the owner, you are responsible for the animal’s damages. In the Rashba you see very clearly that there is ownership here—full ownership. And then he continues: “And not only in the case of a robber, but even in the case of ordinary guardians, from the time of pulling they became obligated in guarding it against causing damage. And that is what we learned: they became obligated.” Again, one can discuss whether this is by force of contract or because the Torah sees them as responsible. Now the Rashba didn’t mention this rationale in the case of the robber, right? So presumably this also isn’t said regarding guardians, because this rationale isn’t mentioned at all in the Rashba. Tosafot, which does bring this rationale—I noted last lecture that after Tosafot said this rationale, we have to go back and think what Tosafot would say about guardians. Is this regarding guardians an obligation that the Torah imposes on them, or does this rationale merely shape the contract they have with the owner, but in the end it’s a contractual obligation? But all that is within Tosafot, which mentioned this rationale of on whom should we impose the responsibility—only on the one who can bear it. But the Rashba doesn’t mention this rationale at all. According to the Rashba, the robber is liable with no connection to this rationale because he is owner, and whoever’s property caused damage has to pay. So suddenly he moves to a guardian and says, “even in the case of guardians.” What does “even in the case of guardians” mean? What? He says: “from the time of pulling they became obligated in guarding against its damages.” What does that mean? I don’t know. Meaning, I think it’s more likely that what the Rashba means is that they obligated themselves contractually. It’s not that the Torah imposes it on them. Just as in the case of a robber he doesn’t speak of the Torah imposing it on him, but simply because he is owner he must pay. Meaning, he doesn’t bring in all this extra kitchen of Tosafot—that beyond the contract in the case of guardians and beyond ownership in the case of a robber, there is this rationale saying that after all only you can be responsible, and this rationale shapes either the contract in the case of a guardian or the acquisition in the case of a robber. In the Rashba that rationale isn’t mentioned. Since the rationale isn’t mentioned, it seems that in the case of a robber this goes straightforwardly based on ownership. Simply owner, and therefore he is liable. And in the case of a guardian, simply because of the contract. Just as you obligated yourself to guard the animal for me so that it won’t be stolen, you also obligated yourself to guard it so that it won’t cause damage. And then despite the— But according to the Rashba, is he exempt? What? And according to the Rashba, why is the owner from whom it was robbed exempt? He is also an owner. No, because if he too is an owner—if it depends on ownership and the robber is also an owner—then why is the robbed owner, who is also an owner, exempt? No, the robber is considered owner for every purpose. Sole owner? Yes. The original owner is owner only with respect to—we’ll get to this in a moment. He is owner only in the sense that the animal has to be returned to him. He has some sort of connection to the animal. At least that’s what seems from the Rashba. The Rashba sees the robber as owner. But according to Tosafot? And according to Tosafot we would say that it isn’t enough to be owner; you also need the rationale that you can guard it. But according to the Rashba, then seemingly the robbed party is also an owner. But I hear what you’re saying. According to the Rashba, if I understand correctly, your point is right. That actually strengthens what I said earlier. According to the Rashba, when he sees the robber, it’s a full owner just like a regular owner. True, there is still some connection to the robbed owner in the sense that you must return the object to him, but as long as you haven’t returned the object, the Torah sees it as entirely your acquisition. It’s your animal, and that leads directly to the consequence that you are liable for its damages. No need to extend, no need for rationales, no need to ask yourself. There’s no hesitation. The Rashba doesn’t even present this as a question and answer. He simply explains the Gemara. In Tosafot it’s a question. Tosafot asks: wait a minute, who says this acquisition also includes liability for damages? And then he brings the rationale. The Rashba doesn’t ask a question and answer here. He simply explains the Gemara. That’s all. If they took it out in order to rob it, then it’s theirs, and since the animal is his, he is liable for its damages. That’s all. “And that is what we learned: the four guardians entered in place of the owner. And this is even according to the anonymous Mishnah, and even according to Rabbi Akiva, who says ‘the ox is decreed’ and they are partners,” etc., “for they accepted upon themselves responsibility for its damages from the time of pulling.” Again you see: “they accepted upon themselves.” “Accepted upon themselves” means not that the Torah imposed it on them, but that they accepted it upon themselves in—the contract includes liability for damages, although in both of them being considered—in the case of a guardian, certainly both—the owner is certainly the owner. So what obligates me? The responsibility I took upon myself by force of the contract. True, in the topic of “behold it is yours” in tractate Pesachim 31 regarding “it shall not be seen and it shall not be found,” there we see—at least according to some of the medieval authorities (Rishonim)—that there is also some dimension of ownership in a guardian. For example, one with whom leavened food was deposited—a paid guardian at least—if leavened food was deposited with him, he can violate “it shall not be seen and it shall not be found,” even though the leavened food isn’t his. For leavened food that isn’t yours, you don’t violate that prohibition. So from there a number of medieval and later authorities infer that a guardian too has some dimension of ownership over the thing. Again—what kind of ownership is this? What exactly is the nature of that ownership? That’s a complicated issue in itself. But here in the Rashba it seems to me we don’t need to get to that. Meaning, in damages they are partners. In the case of a robber it belongs only to the robber; in the case of a guardian it belongs only to the homeowner, except that there is a contractual obligation in which the guardian took upon himself liability for damages. The practical difference, as I said before, is the question whom one sues. According to the Rashba it’s quite clear that one sues the owner. Afterwards the owner can sue the guardian by force of the contract between them, but the injured party doesn’t know the guardian and doesn’t know anybody. There’s Reuven’s cow that damaged me; I sue Reuven. If Reuven had a guarding contract with Shimon, let him sue him. Now he says: “All the more so according to Rabbi Yishmael, where the ox is appraised and the ox is not decreed, and all the more so a robber who acquires with respect to unavoidable accidents, for responsibility for its damages is upon him and they are like owners for all purposes.” Meaning, in the case of a robber this is all the more so, because in the case of a robber this isn’t a contractual obligation at all; it’s by force of ownership. Again you see that in the case of a guardian it isn’t a matter of ownership. It’s not that we see the guardian as owner regarding damages, but rather as a contractual obligation. All the more so in the case of a robber, where it is actual ownership. So it seems that although this looks similar to Tosafot, in the end it’s actually the opposite. Not only is it not similar—it’s actually the opposite. Meaning, according to Tosafot, the obligation in a guardian is contractual, but that contract is interpreted by the Torah—not because he accepted this responsibility on himself, but because the Torah shapes all guardian contracts. So it also shapes this one in such a way that it includes liability for damages. And in the case of a robber the Torah shapes the laws of acquisition or the scope of the acquisition that the robber has. In the end there is always involvement by the Torah. According to the Rashba, this whole story is wrong, not in the case of a robber and not in the case of a guardian. In the case of a robber, he is simply owner. Obviously the Torah determined that he is owner, but once it determined that he is owner, there is no reason to distinguish and say that he does not have liability for damages, because according to the Rashba the ownership is probably full ownership of the robber. And in the case of a guardian, it is probably a contractual obligation—but a contractual obligation not shaped by the Torah; rather, you accepted upon yourself responsibility for its damages the moment you became a guardian. By implication, again, you could say for example, no, I don’t want to bear liability for damages, and then the owner will have to find a solution. But if you didn’t state that explicitly, then as far as we’re concerned you accepted upon yourself in the contract liability for damages. There is the Sema here on section 396. Every so often the file disconnects here because I also want to see you, and when I’m with this file I can’t see. The Sema writes in 396: “They are liable from the time of pulling.” Explanation: “The robber is liable for what its animal damaged, even though the robber does not acquire it by pulling, for who told him to pull? Nevertheless, since he did with it an act that acquires in buying and selling, and it is now in his domain, he is liable for guarding it.” That’s exactly what you said. He acquires by pulling? Did I agree that he would acquire it? He’s a robber. How does a robber acquire by pulling? “Nevertheless, since he did with it an act that acquires in buying and selling, and it is now in his domain, he is liable for guarding it. So wrote Tosafot and the Rosh. And see the Perishah. Not like the Ir Shushan, who wrote that they are liable because he acquired it by pulling.” What’s the difference? The Ir Shushan is the Rashba. The robber acquired it by pulling; now it is his. Once it is his, then he is liable for it just like anyone whose property caused damage. The Sema insists on going with Tosafot, and here we see it very sharply, because he explicitly explains that these are two different opinions. He says that according to Tosafot, the robber does not acquire it by pulling. He also knows there are acquisitions of robbery; he doesn’t deny that there are acquisitions of robbery. But the robber does not acquire it by pulling in the sense of being owner. That by itself cannot obligate the robber to pay liability for damages. Therefore he says: nevertheless, since he performed an act that in buying and selling is considered an act of acquisition, and it is now in his domain—that’s Tosafot’s rationale, that if it is in his domain then only he can guard it—he is liable for guarding it. “So wrote Tosafot.” He brings it from Tosafot. Okay, so I think that here—already in the Rashba I said it was a tone, that because he doesn’t mention Tosafot’s rationale, it follows that he really doesn’t mean what Tosafot meant. Here in the Sema it’s out on the table. Meaning, he presents it as two differing opinions: the Ir Shushan versus what he himself holds, or what Tosafot and the Rosh hold. The Rosh, as he understands it, is here in section 3 with us: “If bandits took it out, the bandits are liable.” And the Jerusalem Talmud establishes it where they took it out in the status of a robber, but if for destruction they are exempt. And the Gemara establishes it where they struck it. “And even though the robber does not acquire it by pulling, for who told him to pull? Nevertheless, since he did with it an act that acquires in buying and selling, and it is now in his domain, he is liable for guarding it.” Exactly the wording of the Sema. Meaning, the Sema takes this wording from the Rosh, but it’s a summary of Tosafot—Tosafot says the same thing too—and the Ir Shushan is the Rashba. Okay? Now I really want to point out—we’re starting to see here that between the Rashba and Tosafot there are really differences in conception, not only in the liability for damages that a robber who took out the animal has—that’s the result—but the basis of their disagreement is the question of how to understand acquisitions of robbery. Are acquisitions of robbery really full ownership in every respect? That seems to be the view of the Rashba and the Ir Shushan, and pulling acquires for the robber despite the remark of the Rosh and the Sema: “Who told him to pull?” What do you mean, anyone who pulls something acquires it? You need the agreement of the owner. So they say no. Once the Torah determines that the robber has acquisitions of robbery, then the Torah says that even though here there is no consent of the transferor, if you pulled, you acquired. That’s it. You pulled, you acquired. Okay, that’s the story. And according to the Sema and Tosafot, there really is no acquisition here. That is, there is acquisition with respect to unavoidable accidents perhaps, but the reasoning expands that acquisition also with respect to liability for damages. In principle, we do find in Jewish law acquisitions of robbery that the robber has. But the robber has full acquisition only if something else happened in addition to the owner’s despair. Meaning, he took the object, the owner despaired, and now there still are not acquisitions of robbery in the full sense. The acquisitions of robbery appear after there is a change of domain, a change of name, or things of that kind—meaning, some additional element, generally a change that has to happen in the object. For example, if the robber sells it to someone else, or the object is broken, or something changes in it, or something like that. But without that, the mere fact that the object is in the robber’s domain does not by itself give the robber full acquisition yet. Now, after despair and change of domain—again, I’m explaining carefully because this is a very confusing topic, a very complicated topic, and there are many views in it too. I’m going only with the broad lines here. In acquisitions of robbery it generally works like this: I rob, and then the owner despairs. He despairs after I robbed. Since he despairs after I robbed, then for me it came into my hand in a prohibited manner, right? The object came into my hand in a prohibited manner because the owner had not yet despaired. Now after the owner’s despair, I sell the object to someone else, so now there is a change of domain. Or the object breaks, so there is a change in the object itself, or it got fatter, or old—doesn’t matter. There are all kinds of changes the Gemara discusses. In that state, after the additional change has already happened, there is full ownership. I also no longer need to return the object; I have to return the money. Meaning, now it’s full ownership in every respect. The dispute between Tosafot and the Rashba is about what happens before the additional change occurs. I robbed, the owner despaired, and that’s it—now it’s with me; there was no further change. There was no change of domain, no change of name, nothing additional. What is the status of the object with me at this stage? The Rashba claims: full ownership. A big novelty—full ownership already now. And we’d have to understand what the change then does, but full ownership already now. According to Tosafot, it’s not full ownership, but regarding liability for damages we say that he is owner. Okay, so their dispute is over the stage before the change. Now the wording of Rashi in our topic—Rashi explains on the Gemara that says they acquired it for the robber, “once he took it out, it stands in his domain for all purposes.” Rashi writes here: “There is pulling and change of domain, and it is acquired for all purposes.” This Rashi is very strange, because this is not what’s called pulling and change of domain. Pulling and change of domain means that after I pulled it, I sold it to someone else. The change of domain is not from the robbed owner to the robber; that is the robbery itself and the despair that follows it. But the change of domain usually discussed is when I go and sell it to a third party, and now it is fully acquired by the third party because there was despair and a change of domain. Here Rashi inserts despair and change of domain into the robbery itself, which is strange. It seems to me that what Rashi wants to say is like the Rashba. Rashi wants to say that from the perspective of acquisition, even the transition from the robbed owner to the robber is a change of domain. The only difference once I also sell it to someone else is that the obligation of return has lapsed. Meaning, it is entirely mine already when I robbed it and he despaired—that is, after he despaired of course. So it is entirely mine, but I still have an obligation of return—“and he shall return the stolen item that he stole.” If a change occurred, he can no longer say, “Here is yours before you,” or sell the animal or something, the stolen item or something like that, and then there is no obligation of return. There is no obligation to return the object; you have to pay the money. But the object itself no longer belongs to the robbed owner, in the sense that it doesn’t have to be returned to him. But Rashi probably understands like the Rashba that already at the first stage the ownership is full ownership. It’s like despair and change of domain in terms of ownership. Even the change of domain from the robbed owner to the robber is a change of domain. The additional change of domain to the purchaser is what cancels the obligation of return. It severs completely the connection between the owner and the object, because until that stage there definitely is an obligation of return. If the object is with you, you have to return the object to the original owner. His connection to the object hasn’t lapsed. Okay? But the ownership is full ownership. And then our implication is that with respect to liability for damages, you are the owner whose property caused damage, and therefore I think Rashi goes with the Rashba. But in the straightforward meaning, what’s here is not despair and change of domain; there is only despair. And therefore indeed Tosafot and the Sema that follows it say—and the Ritva goes with the Rashba and Rashi—and the Rosh and Tosafot and the Sema argue: what are you talking about? For now this is not ownership, it’s liability for unavoidable accidents. After the change it becomes ownership, but for now it’s only liability for unavoidable accidents. Therefore if you want to obligate him also with liability for damages, you need proofs or rationales. It requires additional reasoning. It doesn’t follow from your being owner, because you aren’t really owner until the additional change occurred. Okay, let’s stop here for a three- or four-minute break and then we’ll come back in the middle. Okay, let’s resume. Okay, so I actually started speaking a bit about acquisitions of robbery in general, after we saw Tosafot and the Rashba, and the claim is as follows, namely: when we speak about acquisitions of robbery in the full sense, we’re speaking of an acquisition that the robber has after despair plus something else, another change or something of that kind. Despair alone does not acquire. Despair alone does not acquire. That’s a dispute in the Gemara, but despair alone does not acquire. Now the question is, still, what is the interim status? The interim status is that on the one hand, there is certainly an obligation of return. After despair and change there is no longer an obligation of return, and the robber has to pay the money and not the object. But as long as there was no additional change and only the owner’s despair, since it came into his hand in a prohibited manner—as opposed to a lost item, right? In a lost item, what is the parallel to a robber? The parallel is a finder of a lost item. In a lost item, if the owner’s despair happened before the object came into the finder’s hand, then it came into his hand permissibly. And if it came into his hand permissibly, then despair alone acquires. Therefore the finder acquired the lost item. If he takes the—takes the—the lost item, then there is no problem at all. Of course. Did he become liable with respect to liability for its damages? What? Did he become liable regarding liability for its damages? Obviously—it’s entirely his. What do you mean, regarding liability for its damages? This is now entirely his cow. He doesn’t have to return it. I’m speaking after the owner’s despair. No, but can there be no state where he is like the robber’s case? There can be. If the finder picked up the lost item before despair, and the owner despaired afterward. And there are all kinds of indicators for when and how you know, but it doesn’t matter—the owner despaired afterward. Then indeed it came into his hand in a prohibited manner. And then he has a full obligation of return. And about that there is a dispute whether he is like an unpaid guardian or a paid guardian—Rav Yosef and Rabbah, with the “perutah of Rav Yosef.” Obvious. Okay. So that’s a topic of its own. In any event, in the case of a lost item that you pick up after despair, then there despair alone acquires, because it came into his hand permissibly. But here, after all, it came into his hand in a prohibited manner—he robbed. After that the owner already despairs because he says, I can’t get it away from the robber, enough already, the owner despairs. Once the owner despairs, you can’t acquire the object, since when you took it, it was prohibited. You acquire it by pulling, but if the pulling was done in a prohibited way before the despair, then such pulling will not help. As the Rosh asks here: who told him he can acquire? What do you mean? Someone allowed him to pull? Meaning, what’s this? The fact that you pull something does not make you its owner. You need the agreement of the transferor. Therefore you are not owner. What happens after there is a change? After there is a change, you already become owner, or the purchaser becomes owner—that’s a change of domain—and then you no longer have to return the object itself but only its value. Okay? But regarding the object itself, the obligation of return has already lapsed. Before the change occurs—after despair, you took the object, robbed the object, and despair occurred—the current factual status, first of all, is: A, there is an obligation of return to the owner, that is clear, agreed by all. B, you are liable for unavoidable accidents. Even if an unavoidable accident happened to the object, you are liable. Which means there is some dimension of ownership here. Why? Because liability for unavoidable accidents in Jewish law is generally tied to ownership. What do I mean? Let’s say the object was with the robber after the owner’s despair, with the robber, and now an unavoidable accident happened to the object. Okay? Now if we regard the object as entirely the owner’s and not the robber’s, then the object suffered an unavoidable accident, and you say to the owner: your object suffered an unavoidable accident, what do you want from me? This was unavoidable. I’m exempt. How can you obligate the robber for unavoidable accidents? What we discussed at the beginning of the lecture. How can you obligate the robber for unavoidable accidents? I say no, no—the object is regarded from my perspective as yours. You have to return it to the owner, but it is your object. Or it or its value, depending on whether there will be some change, but in any event at the moment you have an obligation of return. But the object is yours. So then what? If something happened to the object, it happened to you; your object was lost. What does that have to do with your obligation of return to the owner? You still have to return to the owner what you owe him. The object suffered an accident—it happened to you, not to the owner. Therefore, in the simple conception, the purpose of transferring the object to the robber is to obligate him for unavoidable accidents. It’s not that we’re doing favors for the robber and giving him objects even though nobody intended to transfer them to him. Our purpose is to transfer it to him in order to impose on him responsibility for unavoidable accidents. Meaning, so that he will have to fulfill the obligation of return even if an unavoidable accident happened. But at least for that purpose, the object in some sense is already his now. After the change occurred—change of domain, change of name, and so on—after another change occurred, now the obligation of return also lapses. Now you already have to return money, but the object belongs to whoever it is with, or to you if the object changed, or in a change of domain to the purchaser. But the object now belongs to whoever it is with. And the difference is that the obligation of return lapsed—that’s what happens at the factual level. Meaning, at the factual level there is an obligation of return even after despair as long as it came into his hand in a prohibited manner, and the obligation of return lapses after the additional change. The question is how we relate to the acquisition status. So after the change there is no question—that is full acquisition status in every respect; it’s simply entirely yours. The connection between the owner and the object has been severed completely; there is nothing left. In the intermediate stage, before the additional change, there is a double connection. On the one hand you are owner for purposes of being liable for unavoidable accidents, and on the other hand you are obligated to return the object to the original owner. So there is some kind of situation here where the object is between the two of you; each of you has some ownership connection to the object. And over that the Rashba and Tosafot and their camps disagree. Tosafot understands that at this stage you are not full owner; you are owner only with respect to liability for unavoidable accidents. Its novelty is that this partial ownership also includes liability for damages, not only unavoidable accidents—unavoidable accidents vis-à-vis the robbed owner, and liability for damages vis-à-vis the injured third party. The Rashba and apparently also Rashi understand otherwise: no, you are basically already full owner before that stage. So what is the difference between the state before the change and the state after the change? After all, if he is already owner from the outset, then what happened? The whole difference is only that the obligation of return lapsed. Meaning, after the change there is no longer an obligation to return the object. Some kind of—call it some kind of lien or claim that the original owner has. Meaning, the object is mine but there is some kind of claim of the original owner that I must return the object to him. That claim lapses after the change. By contrast, according to Tosafot and its camp and the Rosh and the Sema and so on, they understand: no, no, there is no ownership. You have ownership with respect to unavoidable accidents, but you don’t really have ownership. Ownership is created only after the change, and the practical difference is regarding liability for damages. So much so that there are indeed medieval authorities who wonder—in the topic in Gittin 54-55 there the question is how despair and change of domain can happen at all. After all, in order for a change of domain to happen, you have to sell the object. If you’re not owner, how do you sell it? You’re not owner—how can you sell it? So the Rashba there brings several views, but one possibility he brings is that “his acquisition and his consecration,” let’s call it that, “come simultaneously”—doesn’t matter—his acquisition and the transfer come simultaneously. Meaning, by the very fact that you sell it to the third party, then you too acquire it and by force of you, the third party acquires it; they come simultaneously. Before that it also wasn’t yours. That fits Tosafot’s position here, that as long as there was no change it wasn’t yours. So how can you sell? By the fact that you sell it, that also creates your ability to sell, because you become owner and immediately lose it in favor of the purchaser. It’s that kind of simultaneous thing. By contrast, other medieval authorities—the Ritva there, for example—say that basically you are already owner beforehand, except that you have an obligation of return. Since you are already owner beforehand, you can sell. Once you sell, the obligation of return lapses. By the way, why does it lapse? Because once I sold it to a third party, the third party got the object only after the despair. Meaning, with me there is an obligation of return because it came into my hand in a prohibited manner. It came into my hand before the robbed owner despaired. So even if he despairs, that doesn’t remove my obligation of return. But after he despaired, if I sold it to someone else, then for that person it came into his hand permissibly, after the owner’s despair. Therefore he has no obligation of return. So the acquisition remains, the obligation of return flew away, and therefore what I as robber have to pay—but from the acquisition standpoint, the object already entirely belongs to whoever it’s with. This is exactly the same dispute we see in our topic. The Ritva there follows the Rashba’s position here. And what I brought from the Rashba there—and again, the Rashba there says several directions—but what I brought from the Rashba there follows Tosafot’s position here: that he basically has no acquisition; his acquisition is created with the sale. According to the Ritva, his acquisition exists even before; there is only an obligation of return. That is exactly the difference with respect to liability for damages. If he has an acquisition before and there is only an obligation of return, then obviously he also has liability for damages; he is owner in every respect. But if, according to the Rashba there—meaning, in Gittin—according to Tosafot here, he has no ownership; he only has ownership with respect to liability for unavoidable accidents, but no real ownership. The ownership belongs entirely to the robbed owner until a change occurs. So Tosafot and the Rosh ask quite rightly: then what about liability for damages? Where does that come from? After all, he isn’t an owner. For that purpose too he is owner because of the rationale. Okay, that is more or less the picture that emerges for the Rashba and Tosafot. Now look, for example there is a Gemara in Sanhedrin 72. “Rav said: If one came through a tunnel and took vessels and left—he is exempt.” Someone came at night like a thief—you know there is a law of one who comes through a tunnel that you may kill this thief. Once I wrote an article about this in Techumin, and there were lots of arguments and hesitations over whether to publish it or not—very amusing what happened there. In any case, my claim in the article was that the permission to kill one who comes through a tunnel does not stem from concern for my life, as seemingly appears in the Gemara there in Sanhedrin. The Gemara there in Sanhedrin says that if I try to resist, he will kill me; since so, he has the law of a pursuer, and therefore I may act first and kill him. And then it comes out that there really is no permission to kill a thief; rather, you simply apply the law of pursuer in advance. You know this is going to develop into a case of pursuer, so don’t wait—kill him now. I argued there that one may kill in order to defend against theft, in order to protect my property, and that this has nothing at all to do with danger to my life, and I explained the Gemara there differently. Doesn’t matter. In any event, regarding our matter: one who comes through a tunnel may be killed; there is permission to kill him. So Rav says: yes, if this tunnel-thief took things, took vessels and left—stole them and succeeded in stealing—he is exempt. What is the reason? “He acquired them through blood.” “Blood” here means blood, not money. Since he is liable to death as one who comes through a tunnel, he acquired them through blood. What does that mean? Since he is liable to death, he is exempt from returning the robbery, right? Because “he receives the greater punishment,” and so he is exempt from returning the robbery. Once he is exempt from returning the robbery, then he acquires it. Okay, that’s what Rav says. Rava said: “Rav’s statement makes sense where he broke them, so that they no longer exist. But if he took them—no.” If he merely took the vessels but they are still here, then what are you talking about? No. The Gemara says: “But did not Rav say even if he only took them? For he has monetary standing, and if they were lost by unavoidable accident he would be liable. Therefore they stand in his domain; here too they stand in his domain.” Meaning, the Gemara says: yes, if he took them, then he has monetary standing, right? And if they suffered unavoidable accident, he is liable. What does “liable” mean? Liable to return. Therefore this counts as being in his domain. “Here too they stand in his domain.” “But that is not so, for the Merciful One placed them in his domain only with respect to unavoidable accidents. But with respect to transfer of ownership, they remain in the domain of their owner—just as with a borrower.” Just as with a borrower you don’t say he is fully owner, although he is liable for unavoidable accidents, so too with a robber: liability for unavoidable accidents does not mean he is really owner. With respect to transfer of ownership, it is basically in the domain of the original owner. Now the Kovetz Shiurim on Bava Kamma, section 14, takes this Gemara and shows from it what we discussed earlier. “We derive that change acquires from the verse ‘that which he stole.’” Yes—after all, from where do we learn that change acquires? It says, “and he shall return the stolen item that he stole.” When the stolen item is no longer the item he stole—when it underwent change—then there is no “he shall return the stolen item.” So the Kovetz Shiurim asks: seemingly it is difficult, because from the verse we know only that he is not obligated to return it after it changed, and he also cannot say “here is yours before you,” but still from where do we know that it is acquired by the robber through the change? All you know is that the obligation of return no longer exists after change, because it says “and he shall return that which he stole.” If it isn’t what he stole, there is no obligation of return. But the fact that there is no obligation of return—does that mean he acquired it? Who says he acquired it? “And it must be said that the two are dependent on one another, because once the law of return lapses, automatically it is acquired by the robber from the initial robbery.” Meaning, the thing is basically acquired by the robber; what prevents the acquisition is the obligation to return. Once the obligation to return lapses, then the robber’s acquisition is completed. “And the basis for this,” says the Kovetz Shiurim, “is from the topic in Sanhedrin 72, where Rava said that one who comes through a tunnel acquires through blood because he receives the greater punishment. And what kind of acquisition is there in ‘he receives the greater punishment’? What does that have to do with acquisition? It is forced from this that since because of ‘he receives the greater punishment’ he is exempt from return, the robbery is acquired by the robber—for were it not for the obligation of return, the robber acquires the thing.” And he proves from the Gemara there what he says here: you see in the Gemara there that once you remove the obligation of return, the robber becomes owner. Meaning, what prevents him from being owner is only the obligation of return, and once the obligation of return lapses, the robber becomes owner. Therefore in one who comes through a tunnel, since there is no obligation of return because of “he receives the greater punishment,” automatically he becomes owner immediately even before there is a change. It is enough that he robbed and there was despair; you don’t need an additional change of domain for him to be owner. He becomes owner already. Why? Because ordinarily in a regular robber there is an obligation of return; only after the change does the obligation of return lapse. But in the robber of one who comes through a tunnel, there is no obligation of return from the outset even before the change, because there is “he receives the greater punishment,” since he is liable to death. Once there is no obligation of return, he acquires. That’s what he sees there in the Gemara. Then he continues and says: “The fact that we do not rule like Rav in this matter”—we rule like Rava, that only if the vessels were broken did he acquire them, but not if they still exist—“is because he holds that ‘he receives the greater punishment’ applies only where one must pay from his own property, and not in returning an object that is not his. But in the point that were it not for the obligation of return, the robbery is acquired by the robber, everyone agrees.” He says that Rava does not disagree with Rav on the basic conceptual principle: that all that prevents the robber’s ownership is only the obligation of return, and once the obligation of return lapses the robber becomes owner. Rather, Rava claims that before the object was broken, the robber does not become owner—there is an obligation of return. “He receives the greater punishment” does not exempt him from the obligation of return. Why not? Why does it not exempt him? Because “he receives the greater punishment” applies to punishments. If you have to pay money, then liability to death exempts you from paying money. But the duty to return the object itself is “my property is in your possession”; it’s not because of some obligation to pay. It’s simply: this object is mine, give it to me. Not a payment obligation. On that, “he receives the greater punishment” doesn’t apply. That’s what Rava claims. Rav claims that it does apply even to that. Okay? So their dispute is only over whether “he receives the greater punishment” exempts from the obligation of return when the object still exists, or only when the object was broken or changed. But as to the principle itself—that once the obligation of return lapses, the acquisition already takes effect—they all agree. And that is what the Kovetz Shiurim says. Once—how do we know that change acquires? Because change removes the obligation of return. “He shall return that which he stole”—if it’s not “that which he stole,” there is no obligation of return. Once there is no obligation of return, automatically there is ownership. Then he says: “And in truth this is astonishing. For what reason should the robbery help the robber acquire something that is not his?” Does this remind you of anything? This is exactly the Rosh, right? Which he cited himself. You pulled—very nice that you pulled—but as long as there’s no agreement from the robbed owner or the transferor, why do I care that you pulled? How does that pulling acquire? What are you talking about? “Astonishing—by what reason should the robbery help the robber acquire something that is not his? But in any event, this law is proven from the Gemara. And therefore in change, since he is exempt from the obligation of return, automatically it becomes his through the first act of robbery.” What happens in our case? He assumes that basically in an ordinary robber—not one who comes through a tunnel, who has liability to death and “he receives the greater punishment”—in an ordinary robber there really is no acquisition at the first stage before the change. Only after the change is there an acquisition. That is like Tosafot. But the Rashba learns not so. The Rashba says: what are you talking about? The acquisition is completed independent of the obligation of return. Even when there is an obligation of return, the acquisition is complete. The acquisition was done from the beginning. The change only removes the obligation of return, that’s all. Nothing beyond that. The acquisition exists beforehand. Right? He quite clearly goes in the direction of Tosafot and the Rosh. But the Rashba and its camp, and the Ritva there in Gittin that I brought, go in a different direction. They claim that the acquisition is already complete even before that. For example, regarding liability for damages. Why? But there is still an obligation of return! Irrelevant. The obligation of return exists as a kind of lien, but the acquisition is the robber’s full acquisition even without “he receives the greater punishment.” Okay? So there is one more source I brought, from Ketubot 31. There Tosafot says as follows. There Ravina says in the Gemara that a robber acquires by pulling in the public domain, not only in the domain of the robbed owner. So Tosafot asks there: “But in the chapter ‘He who sells the ship,’ Abaye and Rava both say that pulling does not acquire in the public domain?” The Gemara there says that Abaye and Rava say pulling does not acquire in the public domain. The Ri says that they do not disagree with Ravina here. For when he says that he acquires, that is with respect to becoming liable for unavoidable accidents, but he does not acquire so that it should be entirely his. Which is of course Tosafot’s position here too. Tosafot there goes like Tosafot here. “And Rabbeinu Tam thought that they do disagree.” According to Rabbeinu Tam, Abaye and Rava really do disagree with Ravina. Ravina here says he acquires, meaning full acquisition, not acquisition for unavoidable accidents. And Abaye and Rava, who say he does not acquire, really disagree with him. It is a dispute among the Amoraim. Fine, then he brings proofs—not important for us. Again, the same dispute between the Ri and Rabbeinu Tam. The question is whether a robber who pulls, before transferring to another domain—pulls here in the public domain—has full acquisition, or whether this is only acquisition with respect to liability for unavoidable accidents. That is the discussion, the dispute. The same dispute. Okay? Fine. So basically the conclusion is that the background to the dispute between Tosafot and the Rashba is the question whether the robber’s acquisition before the additional change, after despair and before the additional change, is full acquisition or only acquisition with respect to obligation in unavoidable accidents. By the way, the question the Kovetz Shiurim asks—how can he acquire, after all the robbed owner didn’t agree?—obviously according to the Rashba and its camp we have to say that the acquisition is an acquisition established by the Torah in order to obligate him for unavoidable accidents. The Torah just doesn’t make a half-acquisition here. If you already make an acquisition, then it’s an acquisition, period. Once it’s an acquisition, then it’s an acquisition for everything, including liability for damages, including everything. At the end of the day, either you are owner or you aren’t owner. We aren’t inventing a concept here. We aren’t inventing a fictitious concept of ownership. According to Tosafot and its camp, apparently there really is full ownership only after the change, but liability for unavoidable accidents is a liability created not because of ownership, but perhaps because of some sort of fictitious ownership. And that exists even before the change. Then indeed the Kovetz Shiurim, which goes with that view, is right in his question. He says that really it isn’t clear conceptually—so why did they let the robber sell, such that after there is another change a full acquisition will crystallize here? After all, according to their view, in order to obligate for unavoidable accidents you don’t need full acquisition. There is some fictitious acquisition sufficient to obligate for unavoidable accidents, and it exists even before the change. So why give the robber the possibility to sell, and the buyer the possibility to acquire, when the object basically belongs to the robbed owner, and for purposes of liability for unavoidable accidents you don’t need to define full acquisition? So why assume that after a change the object is in fact acquired? And there he leaves it with a question—Rabbi Elchanan—and he is right according to his own method. Because indeed according to his method, the problem of liability for unavoidable accidents can also be solved without acquisition. The proof is that liability for unavoidable accidents exists even before the change, and there there is no acquisition, because he follows Tosafot’s method. So why create acquisition after the change? But what do we see? We do see from the Torah, or from the Gemara that learned from the Torah “that which he stole”—when it is no longer “that which he stole,” then apparently that’s it, there’s no obligation of return and it becomes his, finished. I really don’t know the logic of that, says the Kovetz Shiurim, and rightly so. I’m showing you the logic in the Rashba’s position. The logic in the Rashba’s position is that the whole acquisition in robbery is an acquisition in order to obligate you for unavoidable accidents. Therefore indeed that acquisition is created already before the change, since there is no such thing as half-acquisition. If you are owner, then you are owner. There is only an obligation of return; the obligation of return is a kind of lien, but you are considered full owner already before the change. Why after the change there is no obligation of return—there one can actually find logic. Not why the ownership was finalized, but why there is no obligation of return. That’s what happens according to the Rashba at the stage of change. So like this: if the thing broke, then it’s obvious why there is no obligation of return—pay me; I don’t need a broken object, or one that changed. It’s already another object, so there is no obligation of return upon it; just pay me what you stole from me. That’s simple. What happens with change of domain? There is room to discuss. Once I sold it to someone else, perhaps that is the logic of the market-correction rule or something like that. Once someone bought an object and, after all, he didn’t know the object was stolen, then now you’re beginning to complicate life. After ten years someone can come to me concerning an object that is mine and that I bought, and I may already have passed it on further, and suddenly now arguments will begin with someone from whom this was stolen ten years ago, and so on. So the Torah itself makes some kind of market-correction here and says: once it was sold to someone else, the story is over; let the robbed owner settle with the robber in money. That’s it. The object itself is already out of the game. I see a lot of logic in that; there is no problem with it at all. True, people usually think that the market-correction rule is a rabbinic law, but I think there too people are mistaken. In my opinion the market-correction rule is a Torah-level law, not a rabbinic law. It’s called “market correction” not because it’s a rabbinic enactment. It’s because it is to repair the market. The aim is to allow the market to function; that’s why it’s called “market correction,” but it isn’t a rabbinic enactment in the sense that the sages enacted it. There are various proofs of this; the later authorities get tangled up with this market-correction rule. I once gave a lecture on it and argued that it is a Torah-level law. Now it suddenly occurred to me that perhaps one can even learn it from the fact that change acquires—change of domain. From the fact that change of domain in the case of robbery acquires, one can certainly understand the market-correction rule. And with a well-known thief, isn’t that also the law of despair and change of domain from the Torah? I don’t know. Maybe there is some “we make no distinctions” principle or something. No, but in the rabbinic rule, where it’s without despair and change of domain, then there is a difference whether he is well known or not. What? In the rabbinic rule, where it’s without despair and change of domain, there is indeed a difference whether he is well known or not. In the Torah, it didn’t distinguish in that way. In the case of a well-known thief there won’t be market correction? Yes. I’m not sure— Yes, that’s what you remember? I don’t remember that. If so, then I’ll have to say—one has to check it—that on the contrary, here there is an enactment that it should not apply. Not that the enactment itself doesn’t exist here; since the original law is a Torah-level law, and here the sages enacted that it should not apply. Now again, what does “Torah-level law” mean? I agree that this is a “matter transmitted by Scripture to the sages”; there isn’t a verse. But my claim is that the authority is Torah-level authority. So of course the sages who enacted it can also decide not to enact it. In that sense I have no problem with the sages deciding that in a certain place there will not be market correction. Because that is their decision—but it is their decision within the category of “a matter transmitted by Scripture to the sages,” which is Torah-level. It is not an enactment in the sense that the authority is rabbinic authority. Okay. Now in the Gemara later on, time is a bit short, the Gemara later on—we spoke about the fact that if bandits took it out, the bandits are liable. And the Gemara says, after all, this is obvious, because since they pulled it, then it stands in their domain for all purposes. Up to here we studied the Gemara, right? The robber’s ownership as opposed to a guardian, before change, after change—that is all the discussion we’ve done until now. But the Gemara ultimately says: all that is obvious. It’s a correct law—the Gemara doesn’t retract it. But apparently that isn’t what the Mishnah wanted to teach, because that point isn’t a novelty; it is obvious. Therefore the Gemara says: “No, this is necessary where they stood before it.” Wait, I’ll reconnect the file. “No, this is necessary where they stood before it.” What does “stood before it” mean? Rashi explains: “They did not pull it; rather, they stood before it on every side so that it would not go here or there but toward the grain to eat.” It seems to me it says “before it,” or maybe “to the standing grain,” meaning to the grain stalks. In any case, that’s the meaning. The point is that Rashi says that what happened here is that they directed it toward the grain that it ate—the animal—without touching it. They didn’t pull it; they stood on both sides and somehow directed it, through a sort of human corridor, a sort of human pathway, to reach the grain and eat. Good. Now we can continue our analysis, and that’s basically what I want to do next. To continue the same analysis of ours—we’ve already gone through many stages in the Gemara. The first stage was one who breaches a fence before another person’s animal. We discussed: a damaging person, damaging property, from what angle. Then I moved it to one who places another person’s animal in another person’s standing grain. Then I came back to bandits who took it out—not merely breached, but took it out. That’s a third case. And in each of these cases the discussion is by what authority you obligate him. Because at root, what you have here is property that is not mine causing damage; there is some element of blame on my part, but it isn’t mine. The question is why I am liable. So either because I am a guardian, or because I am a robber who breached the fence, or someone else who breached the fence not in order to rob, or one who places another person’s animal in another person’s standing grain. All these cases are basically cases where a person does or does not become liable—it’s the discussion in the Gemara—to pay when the damage was caused by an animal that is not his. Okay? Therefore I basically want to make a comparison between all these cases. That is the significance of the topic. Some of these cases will be a damaging person; some of them will be damaging property. The novelty in damaging property is always that you have to look for why this is considered my property. If you want to obligate me as a damaging person, then you need to show why I was basically direct causation here—why I basically caused the damage. If you want to obligate me from the side of damaging property, you have to show why I am the owner. So in the case of bandits, they intended to rob it—but now they merely stood before it. “Stood before it” means they didn’t rob it, because they didn’t perform pulling, right? They basically didn’t acquire it. So the question comes back: then what is the difference between this and “they took it out”? After all, when bandits took it out, they are liable. Only in—sorry—when they breached, the bandits are exempt. When they took it out, they are liable. Why? So the Gemara says because it stands in their domain for all purposes; they acquired it. But now here they did not acquire it. So we’ve returned to the case of breaching. But in breaching, the bandits are exempt. So why in “they stood before it” are they liable? Of course here too there are two principal avenues, even before I get into the explanations, that have to be examined. One avenue is that in some sense they are still considered owners, even though they didn’t pull. And here I might use once again the argument with Binyamin at the beginning of the lecture, because from the standpoint of blame, there is blame here. Maybe this will even be a good practical difference. From the standpoint of blame, there is blame here. From the standpoint of the question on whom can responsibility be imposed, certainly only on the bandits, right? The owner isn’t here; he isn’t by the animal; he doesn’t know any of this story. You can’t. But there is no ownership here. Because acquisitions of robbery did not take place; they didn’t acquire it because there was no pulling. Maybe that will be a good practical difference for our argument from the beginning of the lecture. Okay? That’s one possibility. And then the question is whether one can define here some concept of ownership with respect to liability for damages anyway, because you are blameworthy. That’s basically what Binyamin wanted to say earlier—that we define ownership because of blame, even without speaking about ownership with respect to unavoidable accidents, which doesn’t exist here. Ownership with respect to unavoidable accidents doesn’t exist here because they didn’t acquire it through acquisitions of robbery; they didn’t pull. But it could still be that one can speak here about ownership with respect to damages because of their blame, plus of course the fact that only they can be responsible because the owner isn’t around. Which is exactly Binyamin’s thesis from earlier. That’s one possibility. A second possibility is to say no: they have some involvement here. Involvement in the damage itself. After all, they directed the animal toward the standing grain, which is basically like one who places another person’s animal in another person’s standing grain. And with “one who places” too we discussed that it may be a damaging person, it may be damaging property—that’s a dispute between Tosafot and the Rashba. So we’ll have to compare all these cases to one another and try to build a whole structure according to Tosafot and a whole structure according to the Rashba for all the cases. Meaning: for a guardian, for one who breaches a fence before another person’s animal, or bandits who breached not with intent to rob, and for bandits who took it out and pulled, and for bandits who stood before it. All these cases involve damage done by an animal that is not mine, and there is a discussion whether I am liable or not. The Gemara itself says when they are liable and when not, and now we’ll have to discuss in each of these cases whether this is under the law of a damaging person, the law of damaging property, and what the criteria are. Blame, ownership, pulling, extension of ownership, contract—various things of that sort. Okay, that is basically my goal for—I already see I’m not getting to that now—so next lecture we’ll continue this. I just marked the path forward. I suggest you really look further on in Tosafot and the Rashba, also in Maimonides. The Gemara continues with “they struck it,” not only “they stood before it,” and then moves to one who places another person’s animal in another person’s standing grain and makes a comparison, and we need to understand according to each of the approaches what the comparison will be, what there is to compare. Okay? Good, we’ll stop here. Does anyone want to comment or ask? Okay then, so see you next week.