Chapter: The Receiver — Lesson 11

Table of Contents

• End of the semester, feedback, and administrative updates
• The framework of the topic: ownership in damages caused by property and versions of the Mishnah
• The dispute between Tosafot and the Rashba about positioning an animal and about bandits leading it out
• “That’s obvious,” “they stood in front of it,” and the structure of the Talmud’s proof from positioning
• Building a systematic approach: “they stood in front of it” and striking it, according to Tosafot and according to the Rashba
• Two independent disputes within one larger dispute
• A guardian as a contractual obligation, and the connection to Maimonides, chapter 4, law 4
• Abaye to Rav Yosef: moving from “they stood in front of it” to “they struck it,” and the tension between acquisition and indirect causation
• Maimonides: he struck it until it went to his fellow’s standing grain, liability for indirect but direct enough causation, and “they stood in front of it”
• The Raavad’s gloss and how to read the phrase “until it went”
• Continuation of the learning

Summary

General Overview

The end of the semester is approaching, and people are being asked for feedback and updates about changes in plans for next semester, including an obligation to update the office, along with a strong recommendation to follow the institute’s emails, where notices appear about scholarships and a competition for writing a paper or article with prizes. The lecture returns to the topic of bandits leading it out and one who positions his fellow’s animal on his fellow’s standing grain as a basis for a theory of damages caused by property, and examines whether liability for damage caused by an animal depends on its being your property, or whether it is enough that its guarding is upon you, through a systematic comparison between Tosafot and the Rashba in cases of bandits, one who positions the animal, they stood in front of it, and striking it, and then also in Maimonides and the Raavad’s glosses.

End of the semester, feedback, and administrative updates

The end of the semester is approaching, and people are being asked for feedback, lessons learned, comments, and questions through whatever channel is convenient, like email, WhatsApp, or phone. Anyone whose plans are changing for next semester, or who has some difficulty, is asked to consult, and also to update the office about any change in plans, like leaving or changing tracks. The institute’s notices usually go out by email, and people are asked to keep track of them, including notices about scholarships that haven’t received enough applications, and a competition for writing a paper or article with prizes, as an opportunity to try writing and also get paid.

The framework of the topic: ownership in damages caused by property and versions of the Mishnah

The topic gathers together cases in which a person is or is not liable for damage caused by an animal that is not really his, such as a robber, a guardian, someone who breaks down a fence in front of his fellow’s animal, bandits, they stood in front of it and struck it, and one who positions his fellow’s animal on his fellow’s standing grain. The Rif’s version adds in the Mishnah “that they are your property” in the common denominator, and that points to an approach in which ownership is a condition for liability under the law of damaging property, whereas in our version there is no “your property,” and one can understand that liability may be determined by “their guarding is upon you” even without formal ownership. The question becomes sharper in light of the law that one who positions his fellow’s animal on his fellow’s standing grain is liable even though the animal is not his, and the possibility is examined that this is liability under the law of a person who causes damage, or an expansion of damages caused by property even without full ownership.

The dispute between Tosafot and the Rashba about positioning an animal and about bandits leading it out

The Rashba argues that in the case of positioning, liability is under the law of a person who causes damage, under the law of indirect but direct enough causation, whereas Tosafot explains that he is liable under the law of damages caused by property even though the animal was not acquired by him and there was no intent to rob. Regarding bandits led it out, the Rashba holds that the modes of acquisition of robbery count as full acquisition, and therefore the liability there is under the law of damages caused by property, while Tosafot holds that robbery-acquisitions at the stage of despair without change are not full acquisition; but the logic that “if you are the one who can guard it” shapes the status so that the animal “stands in his domain” for purposes of damages. The two approaches are presented as consistent: the Rashba requires full ownership in order to impose liability for damages caused by property, and therefore pushes positioning into the category of a person who causes damage, whereas Tosafot emphasizes that the basis of liability is responsibility and guarding, and therefore can impose liability for damages caused by property even without full ownership.

“That’s obvious,” “they stood in front of it,” and the structure of the Talmud’s proof from positioning

In the case of bandits who led it out, it says “that’s obvious,” because “it stands in their domain for all matters,” and the novelty is established in “it was only necessary where they stood in front of it,” when they did not pull it but merely stood in front of it to direct where it would walk. One possibility is liability under the law of a person who causes damage through indirect but direct enough causation, because they directed the animal toward the damage; and the second possibility is liability under the law of damages caused by property, because responsibility for the animal was placed on them even without an acquisition. The Talmud brings the law of Rabbah in the name of Rav Mattana in the name of Rav: “One who positions his fellow’s animal on his fellow’s standing grain is liable,” and there too it says “positioning is obvious” and “it was only necessary where he stood in front of it,” and the understanding of the “obvious” changes depending on the basis of the approach—whether the obviousness comes from ownership or from responsibility itself.

Building a systematic approach: “they stood in front of it” and striking it, according to Tosafot and according to the Rashba

According to the Rashba, in the case of positioning, both actual positioning and he stood in front of it, the liability is that of a person who causes damage under the law of indirect but direct enough causation, and the novelty in he stood in front of it is that even a more indirect kind of causation still counts as that category. According to Tosafot, one who positions the animal is not a person who causes damage but rather falls under damages caused by property, because its guarding is upon you even when it is not your property, and therefore he stood in front of it also remains a case of damages caused by property, because if actually positioning it by hand is not classified as a person who causes damage, then all the more so he stood in front of it will not become a case of a person who causes damage. In the case of bandits, according to Tosafot there is no necessary dependence on acquisition in order to impose liability when there is responsibility, whereas according to the Rashba, in ordinary banditry the liability is damages caused by property by force of full robbery-acquisition; but when there is no pulling, in he stood in front of it, there is no acquisition, and therefore the liability tends to become that of a person who causes damage through indirect but direct enough causation, similar to positioning.

Two independent disputes within one larger dispute

The Rashba’s explanation as against Tosafot in the case of positioning actually creates two disputes: one dispute is whether positioning counts as indirect but direct enough causation or only as more remote causation, and a second dispute is whether liability for damages caused by property requires full proprietary ownership, or whether responsibility and guarding are enough even without ownership. The two disputes are presented as independent of each other, but the position one takes on one of them forces the ruling on the other in order to explain the liability of one who positions the animal in the Talmud.

A guardian as a contractual obligation, and the connection to Maimonides, chapter 4, law 4

In Tosafot it emerges that the guardian becomes obligated by force of a contract with the depositor, and not as a direct tort obligation toward the injured party, so that the injured party sues the owner, and the owner then turns to the guardian. Maimonides in the Laws of Damage to Property, chapter 4, law 4, writes that guardians are exempt if they guarded with excellent guarding, while the owners are liable, and many raise difficulties about this, and an understanding is proposed that the discussion of the guardian deals with the relationship between the guardian and the owner, while the owner stands opposite the injured party. The Raavad writes, “Rather, one must say that the owners are never spared from the hand of the injured party,” and sketches a model in which the owner is judged opposite the injured party, and the accounting with the guardian is done afterward.

Abaye to Rav Yosef: moving from “they stood in front of it” to “they struck it,” and the tension between acquisition and indirect causation

Abaye challenges Rav Yosef and suggests that the case under discussion is “that they struck it” and not “that they stood in front of it,” and he compares the law of bandits to the law of one who positions an animal. Rashi explains “that they struck it with a stick,” and that the point being taught is that striking it with a stick is a form of pulling, so the center of the discussion is acquisition and not directly indirect but direct enough causation. The Rashba writes, “Since they struck it in the manner of robbery, they acquired it, and it is in their domain regarding guarding against its damages,” and attributes this also to Rashi and to the Jerusalem Talmud, in such a way that the striking serves as an act of acquisition for the bandits, whereas one who positions an animal without intending to rob does not enter that same acquisition track.

Maimonides: he struck it until it went to his fellow’s standing grain, liability for indirect but direct enough causation, and “they stood in front of it”

Maimonides in the Laws of Damage to Property, chapter 4, law 3, rules that one who positions his fellow’s animal on his fellow’s standing grain is liable, and adds, “And likewise, if he struck it until it went to his fellow’s standing grain and caused damage, the one who struck it is liable,” wording that hints at liability under the law of indirect but direct enough causation and not by force of acquisition, because a direct connection is required all the way to the place of the damage. Maimonides does not bring the case of they stood in front of it, and it is said that this fits ruling like Abaye, that they stood in front of it is merely remote causation in damages and does not obligate, both for bandits and for one who positions an animal. The Rema concludes, “Even if the produce was in the public domain, since it is like damaging with one’s hands,” and distinguishes that specifically “he struck it and the like” is liable, but “if he stood in front of it until it went there, he is exempt, because that is remote causation in damages,” and notes, “the Maggid there is not in accordance with the Raavad.”

The Raavad’s gloss and how to read the phrase “until it went”

The Raavad objects, “All the more so if he stood in front of it,” regarding Maimonides’ liability in the case of striking, and this is explained as a possible different reading of Maimonides’ wording: that the striking caused it to go on its own to his fellow’s standing grain, whereas in he stood in front of it the person actually led it in practice up to the standing grain, in a way that can be seen as more direct. The explanation presents the Raavad as operating within the framework of indirect but direct enough causation and not within the framework of acquisition, and assumes that the comparison of levels of liability depends on the question of how direct the connection is between the person’s act and the animal’s arrival at the place of the damage.

Continuation of the learning

The next lecture was set to deal with the next case of remote causation in the list, “one who brings his fellow’s standing grain into a fire,” and it was mentioned that a summary would appear in the model and on the institute’s website, including Even HaEzel, which deals with the dispute between Maimonides and the Raavad.

Okay, let’s begin. First of all, the end of the semester is already starting to get close, so I’d be happy to hear feedback, lessons, things you want to comment on, improve, ask about—I don’t know, whatever comes to mind. You can do it on WhatsApp, or through whatever channel you want: email, WhatsApp, phone, whatever is most convenient for you. As for next semester, if anyone’s plans are changing, or there’s something they’re having trouble with and they want to consult or talk, then with great pleasure. Of course also with the rabbi each of you is learning with, but I’d definitely also be happy to make myself available if you think of something where I can be of help. And in any case, if there’s any change of plans—you want to leave, you want this, you want to change something in the plans—please update the office. I’d also be glad if you spoke to me and we could think together, but in any case, if there’s any change, update the office. Another thing, just a reminder: we thought about this at a staff meeting and reached the conclusion that people don’t look at emails—or at least a lot of people don’t look at emails. Messages from the institute usually go out by email. That’s the most accessible channel. I know that in this generation email has already lost a lot of its popularity; we’ve moved to WhatsApp, even though there too I don’t always manage to extract responses from people. But I very, very strongly recommend—request—that you keep track of the emails you receive. There are all kinds of announcements there. For example, announcements about scholarships; not so many people submitted scholarship requests, or relatively few did. There are opportunities like that, and it’s a shame to miss them. Beyond that, there’s a competition you’ll get notice about shortly, a competition for writing a paper or article, which also carries prizes, and it’s an opportunity both to get experience writing and of course also to earn something. So it’s worth following the messages from the institute. Okay, we’re going back to the topic of “the bandits led it out” and “one who places his fellow’s animal onto his fellow’s standing grain.” When does the semester end? I think—wait, I’ll check, it’s written here—on January 22. Thank you. That means we still have four weeks here including this week. At the end of this week, this coming Friday, three weeks after that. Okay, so we’re in the topic of “the bandits led it out” and “one who places his fellow’s animal onto his fellow’s standing grain.” I said that really I’m taking the opportunity here to deal with this aspect of ownership in damages caused by one’s property. Because really the sugya here gathers together all kinds of cases or examples in which a person does or does not become liable—that’s the discussion—for damage payments even though the animal is not really his. And there are all kinds of possible situations, for example: a robber, a watchman, one who breaks open a fence in front of his fellow’s animal, bandits, “they stood in front of it and drove it,” “one who places his fellow’s animal onto his fellow’s standing grain,” lots and lots of cases. “They stood in front of it and drove it” applies both to bandits and to the one who places it there. So there are quite a few cases here, and what they all have in common is that at least the question arises—not in all of them is he liable, but at least the question arises—whether to obligate a person for damages caused by an animal that does not belong to him. And then in each place we have to discuss whether yes or no, and if yes then how he is obligated: maybe this is really a case of a person causing damage, because it can’t be damaging property since it isn’t his property; or maybe it is damaging property even though he doesn’t really acquire it; and then all sorts of definitions start up that in a certain sense challenge that assumption that the animal has to be mine for me to be liable for its damages. I’m reminding you of what I already mentioned at the beginning of the semester: in the first Mishnah in Bava Kamma—let’s look here—the first Mishnah in Bava Kamma, after it brings the primary categories of damages of various kinds, it concludes there with the common denominator. Here, I’m sharing the Talmudic text with you. You see? Four primary categories of damage: the ox, the pit, the grazer, and the fire. That’s the Mishnah that opens Bava Kamma. And at the end: “The common denominator among them is that their way is to cause damage, and their guarding is upon you, and when they cause damage, the damager is obligated to pay,” etc. What does “their way is to cause damage and their guarding is upon you” mean? In the Rif’s version here he adds: “The common denominator among them is that they are your property, and their way is to cause damage, and their guarding is upon you.” He adds the word “your property.” In the version before us, that is not written. Here, you see it in the Rif’s version—oops, what is this doing? We were talking about people who don’t use email, but there are also people who don’t manage with these media. Okay. “The common denominator among them is that their way is to cause damage, and they are your property, and their guarding is upon you.” He adds the word “and they are your property.” In other words, the Rif understands that ownership of the property is a condition in order for me to be liable for its damages or for the liability of damages to be placed upon me. In the Mishnah itself, “your property” does not appear. It could be that really the tension here is over the question whether a thing really has to be my property in order for me to be held liable for its damages. Because here, for example, one who places his fellow’s animal onto his fellow’s standing grain is liable, even though the animal belongs to my fellow and not to me, and I also didn’t take it in order to rob it, so that I’d have some acquisition through robbery or something like that. No—it’s really not mine; it’s my friend’s animal. So why am I liable? According to the Rif, it has to be my property in order for me to be liable, and this animal is not my property. So apparently we need to say that this is probably a case of a person causing damage and not damaging property. Because there’s a condition that the thing be my property for me to be liable under the category of damaging property. In contrast, if I don’t require “your property” as an explicit condition, then one could say that a person can be liable for damage caused by another thing even if it is not his property, or one can define it as—it is considered his property for this purpose, that the liability for damages should rest on him. And in the Rif’s version, according to the Rif’s version, why do we need to write “their guarding is upon you”? If it’s your property, then doesn’t it automatically follow that their guarding is upon you? Everything that is your property, you need to guard. Why write both “your property” and “their guarding is upon you”? That’s what’s written. Since it is your property, therefore its guarding is upon you, and when it causes damage the damager is liable to pay. That’s cause and effect, it’s like… No, because it looks like two separate conditions, two separate characteristics. No. “Their way is to cause damage, and it is your property, and because of that its guarding is upon you, and when it causes damage the damager is obligated to pay compensation from the best of his land.” I don’t think there’s any obstacle to reading it that way. Okay, so that’s in general, and I say: I’m bringing this Rif only to remind us that I really think that in a certain sense our sugya is a very, very, very fundamental sugya in the theory of damages caused by property. Because one of the most important parameters in that theory is the question to what extent, if at all, the thing has to be my property in order for me to be liable for damage responsibility for it. Now, we saw that even someone who says it doesn’t really have to be my property sometimes uses the definition, yes, but they treated it as though it were my property in order to obligate me for its damages. And then in the end it comes out that okay, in the end it still has to be my property, only there are things that they treated as though they were my property. But I’m not sure one has to go through that formulation at all. Rather, the moment responsibility rests on me, I am liable for it, and there is no requirement that it be my property in some formal sense. In other words, there can be other factors that obligate me for the damages caused by a thing even if it is not my property in some formal sense. And therefore I say: I’m not sure you can hang this here on the Rif’s version of the Mishnah or not, but it at least puts its finger on the point we are talking about: to what extent there really is a requirement that the thing has to be my property. We saw the position of Tosafot and Rashba regarding one who places it there. In that case Rashba argues that he is liable under the law of a person causing damage, under indirect but legally actionable causation, whereas according to Tosafot it is under the law of damaging property. And that reflects this point. Because Tosafot basically says: here, this is under damaging property even though it’s obvious that if I placed my fellow’s animal onto my fellow’s standing grain, it did not become mine in any sense. I don’t even have acquisition through robbery, because I didn’t intend to rob it. So how am I liable under damaging property? How can you say such a thing? Maybe that itself is the reason Rashba is unwilling—well, not maybe, that is probably the reason—why Rashba is unwilling to accept Tosafot’s explanation, and he argues that this has to be some kind of indirect but actionable causation or a case under the heading of a person causing damage, because damaging property does not apply except where “it is your property,” like the Rif. What does Tosafot say? Tosafot understands that in the end, the requirement that the thing be my property is not essential. A thing that is my property is of course my responsibility, but there can be things that are not my property and are still my responsibility. For example, if someone places his fellow’s animal onto his fellow’s standing grain, then it is obvious that the responsibility for the fact that it was not guarded and that it ate the grain, damaged the grain, rests on him even without him being its owner. Maybe I’ll return to Doron’s earlier comment: why say both “it is your property” and “its guarding is upon you”? After all, from the fact that it is your property it follows that its guarding is upon you. Here we see that that’s true in one direction but not necessarily in the other, because there can be something that is not my property but whose guarding is still upon me—for example, in the case of one who places his fellow’s animal onto his fellow’s grain according to Tosafot. And then you really see that “your property” is only the usual case—in other words, what’s really needed is “its guarding is upon you”; it doesn’t have to be your property. It’s just that “your property” is the normal case of things that I really am obligated to guard. So usually we’re talking about my property, but there will be situations where, even though the thing is not my property, if it’s clear that the logic says I’m the one who has to guard it, I’ll still be liable. And that perhaps explains the version not of the Rif, the one that really does not insert the words “your property”; “its guarding is upon you” is enough. “Your property” is only the common case of a thing whose guarding is upon me, but there can also be other things whose guarding is upon me even though they are not my property. So that’s with regard to Tosafot and Rashba regarding one who places it there. Besides that, we saw a dispute between Tosafot and Rashba regarding bandits who led it out: what level of acquisition through robbery they have there, when I said that what happened there was despair had already occurred, but the change that is usually required for the full acquisition of a robber had not occurred. According to Rashba this counts as the full acquisition of the robbers, and therefore they are liable there under damaging property. If, in the case of one who places it there, the robber is the one placing it there—Rashba speaks about placing it there as a person causing damage—specifically in the case of bandits he insists that this is damaging property. But these are of course two sides of the same coin. Because Rashba goes with this principle that the thing has to be my property in order for me to be liable for it; that’s why I connected it to the Rif. Therefore, on the one hand, in the case of placing it there, it can’t be my property, because I didn’t acquire it—I’m not a bandit, I don’t have acquisition through robbery, I have nothing. It’s true that I’m totally to blame, but it’s not my property. Rashba says: if it’s not my property, then there is no damaging property, so there’s no choice but to say that this is a person causing damage. By contrast, regarding bandits who led it out, Rashba says: there is acquisition through robbery, and the Talmudic text says yes, it is obvious, since it has come into their possession for all matters—that is, there is acquisition through robbery here. So Rashba learns from here that the Talmudic text apparently understands acquisition through robbery to be really full acquisition, and therefore one can indeed obligate under the category of damaging property because you are a full owner. That’s Rashba. Tosafot, by contrast—in the case of placing it there he says this is damaging property, so you see that for Tosafot he does not require the thing to be my property in order to obligate me for damage responsibility, and therefore he is not forced to reinterpret the one who places it there as though this were a person causing damage, indirect but actionable causation. No, for him this is damaging property even though the animal isn’t mine. I am liable because guarding it is upon me even if it is not my property. And in the case of bandits who led it out, there Tosafot says that there really is acquisition through robbery because that’s what is written in the Talmudic text, that this derives from acquisition through robbery. In other words, there it is damaging property because you are the owner, but you are the owner because you have acquisition through robbery, and the logic says that if you are the one who can guard the animal, then the Torah shaped the laws of acquisition through robbery in such a way that you will indeed be liable for them as damaging property. Because this is not a person causing damage; you only led the animal out, you did not place it onto your fellow’s standing grain. Therefore, really, as the Talmudic text says, it is because it has come into your possession, not because you are guilty, but because it has come into your possession—it is your property. Tosafot says: but this is not really fully your property. Right, but the logic says that if the responsibility is upon you, then even if this property is not entirely yours—and Tosafot argues that acquisition through robbery is not complete acquisition—they still place it in your possession. In other words, Tosafot, even though this goes in opposite directions, both Tosafot and Rashba seem to me to proceed very consistently according to their own approaches. For Rashba, there is no liability for damaging property if you are not its full owner. By contrast, Tosafot says: what do you mean? It’s enough that you are to blame for us to see you as responsible for the damages caused by the property even if you are not the owner. And the two implications are the bandits who led it out. Okay, so I think that in this sense, even though they switch sides here—in the case of placing it there Rashba claims under the law of a person causing damage; in the case of bandits who led it out Rashba argues specifically from the side of damaging property—I think these are two sides of the same coin; they’re continuing their own approach. Toward the end of the previous class we started talking a bit about the law of “they stood in front of it.” So let’s go back into that discussion for a moment, because what I want to do today, at least in the first part, is to try to see the position of Tosafot and the position of Rashba systematically across all the cases where there is damaging property that is not mine, and try to build two complete approaches: one of Tosafot, one of Rashba, for all the cases. How exactly does each of them see this whole issue of damages caused by property? In that sense this is a very, very fundamental sugya in damages caused by property. Just to do the bookkeeping—not to add too many extra layers here. After that we’ll get maybe to Maimonides’ position, but for now let’s clarify the positions of Tosafot and Rashba. So let’s start with the Talmudic text itself. In the Talmudic text, yes, so regarding the bandits, the Talmudic text says: this is obvious, because once they led it out, then it is theirs; it has come into their possession for all matters, it has come into their possession for all matters. In other words, they are owners, right? Either according to Tosafot or according to Rashba, they are owners. So if they are owners, then what? Then it’s obvious. Obviously, if the bandits led it out, then the bandits are liable. What needs to be said here? Now I say: specifically the point of “obvious” is more comfortable for Rashba. Because if you understand acquisition through robbery as full acquisition, then what is there to say? Obviously—it is their property, their property caused damage, what is there to discuss? In Tosafot there’s the fact that he needed to explain. Tosafot says: wait, but the animal is not really the bandits’, because there was no change; there was only despair. So how is it theirs? So he has an explanation. The explanation is this logic that since the responsibility is theirs. But if you already need explanations, then why is this “obvious” in the Talmudic text? According to Rashba it’s clear why it’s obvious. Rashba says: the robbers are the owners, and like any owner, if your property caused damage, the responsibility is on you, and therefore I can understand not only the law but also why it is considered obvious in the Talmudic text. But in Tosafot I can understand the law, but it’s a little difficult why the Talmudic text treats this as obvious. Because after all, if this isn’t full ownership at this stage—not full acquisition through robbery—that itself was what they wanted to teach, that even though the ownership is not complete ownership, still for damages we see you as the one responsible. So why is it so obvious? That really is a question on Tosafot. Well, maybe one can always say: yes, that too is obvious, because if someone is responsible then of course—it was obvious to the Talmudic text that surely he’s liable in the matter. Fine, I don’t know. Let’s say that’s a question on Tosafot’s approach. But let’s continue with the Talmudic text. In any case, for now we said there is “obvious,” right? So “the bandits led it out” cannot be taken literally, because taken literally there is no novelty. The Talmudic text says: this is needed only where they stood in front of it. What does that mean? Rashi says that what they—maybe I’ll read Rashi here: “They stood in front of it” means they did not pull it, but rather stood before it on every side so that it would not go here or there, but only toward the grain to eat. I noted last time—yes, either “toward the grain” or “forward.” It could mean it goes forward, that is, in front of it. Or it could mean it goes toward the grain to eat. It’s not important for our purposes. The point is that they did not touch the animal at all; the bandits did not touch the animal at all. Think of two lines that force the animal to go along a certain path that leads it straight to the grain. Okay? So they didn’t pull it. So now it’s clear there is a novelty here. Because the bandits didn’t acquire it, because there was no pulling. So not only was there no change, but there wasn’t even pulling. So the bandits did not really acquire it. Therefore this is not obvious. But if it’s not obvious, that’s fine—but why is it true? Why indeed are they liable? Maybe they really shouldn’t be liable. So why indeed are they liable? There are of course two possibilities here, the two possibilities that accompany us throughout the sugya. One possibility is that they are liable under the law of a person causing damage, somewhat like the one who places it there: you basically took the animal—never mind that you did it in some kind of indirect way—but you took the animal and channeled it straight to the grain. And therefore one can say that they have involvement in the act of damage, and therefore they are liable under the law of a person causing damage. This is not damaging property. Why is it not damaging property? Because they didn’t acquire it; they have no acquisition through robbery because they didn’t even pull it. And certainly according to Rashba, let’s say, where you need acquisition in order to be liable, then here you seemingly couldn’t obligate under damaging property. Therefore I would seemingly say they are liable under the law of a person causing damage through indirect but actionable causation—that is, they basically caused the animal to do damage. Why is this actionable indirect causation and not mere indirect causation? Because the connection is apparently direct enough and certain enough for it to count as actionable indirect causation. That’s one possibility. The second possibility is that maybe it is under damaging property. In other words, even though they did not pull the animal, they are still considered its owners for this purpose, that responsibility for its damages rests upon them. And especially if we understand Tosafot regarding one who places it there—Tosafot says there that over there it isn’t his at all, and Tosafot says that since you placed the animal onto the grain, therefore responsibility is on you and you are liable under damaging property, even though it is not your property. In that sense, certainly according to Tosafot, one can absolutely understand “they stood in front of it” in the same way: even though basically I am not the owner, but according to Tosafot you don’t need to be the owner. What is needed is that it be clear that the responsibility ought to rest on you. If so, then the Torah sees you as the responsible party, and then you become liable not under the law of a person causing damage, not under indirect but actionable causation, but under damaging property. Okay? So there are really two possibilities here: either under the law of a person causing damage through actionable indirect causation, or from the side of ownership. And it even makes sense to connect this to the dispute between Rashba and Tosafot. Because according to Rashba, I’m simply continuing the same reasoning into the next cases, because according to Rashba you need complete ownership in order to be liable under damaging property. Right? Therefore—it’s the same reason in the case of placing it there, he is unwilling to see such a thing. Now the question is how Rashba would explain “they stood in front of it.” Right, how would that work? So perhaps one can say that he understands the bandits as people liable under the law of a person causing damage through actionable indirect causation. The animal is not theirs because they did not pull it, so to obligate them under damaging property Rashba says that cannot be, because you have to be a full owner in order to be liable under damaging property. So you are liable under the law of a person causing damage. But how is this a person causing damage? It turns out that even if you only channel it in such a way that you don’t even touch it, that is enough; that is sufficiently effective or sufficiently direct causation to obligate you under the law of a person causing damage through actionable indirect causation. Okay? And according to Tosafot, since he says that you do not need to be the owner, therefore according to Tosafot the possibility absolutely opens up to explain that here too, true, they did not acquire it, but they are still liable because if they are responsible and they are basically the ones who should have guarded it and also brought about this situation, then the Torah sees them as owners for this purpose, that they need to guard it with respect to damage liability. Seemingly according to Tosafot you don’t even need to explain that “they stood in front of it” means that he literally took it all the way to the place of the damage. It’s enough to say that “they stood in front of it” means he took it out from the place where—where the responsibility is his. Right. And if you want to speak in terms of actionable indirect causation, we’ll see that in Maimonides. For actionable indirect causation, you apparently need to say that they really took it all the way to the place of the damage, so that it’s clear that in the end they forced it to do damage. According to Tosafot all you need is only to make sure it is under your responsibility. In other words, that the owner can no longer guard it and only you can guard it. There is no necessity that they specifically channel it all the way to the grain. Now notice, if we—there are two ways to read Rashi, I’ll remind you again, just because I’m thinking about it now: “they stood before it on every side so that it would not go here or there but only toward the grain to eat,” or “but only ahead of it to eat.” Do you understand the difference? “So that it would not go here or there but only toward the grain to eat”—that looks like actionable indirect causation. But if you say, “it would not go here or there but only forward, and then it went to eat,” or “toward the grain”—yes, in front of the animal, not “to the grain”—then this could fit Tosafot. The first reading would go with Rashba, the second would go with Tosafot. It’s enough that we somehow caused it to get out of its pen. Okay? From there on, you don’t need to have any involvement. Because the whole point is whether we now see you as responsible for the animal, not responsible for the damage. According to Rashba, you need a rationale that makes you responsible for the damage. According to Tosafot, it’s enough that you are responsible for the animal, not for the damage. And for that, “they stood in front of it” is enough, even if you didn’t pull the animal. Now I’ll just remind you that Rashi apparently—at least it seems—goes in Rashba’s approach. And therefore, if Rashi goes in Rashba’s approach, where complete ownership is required, then here it really isn’t likely to obligate under damaging property; rather this will be under the law of a person causing damage, just as I also expect Rashba to say here. Okay, let’s continue. The Talmudic text continues and brings proof for this from the case of placing it there. “As Rabbah said in the name of Rav Matnah in the name of Rav: one who places his fellow’s animal onto his fellow’s standing grain is liable. One who places it there? That’s obvious. It is needed only where he stood in front of it.” In other words, this whole move is brought as support. As I said, the bandits who led it out means they stood in front of it—they didn’t really take it, they just stood in front of it—the same move itself appears in the law of one who places it there. Here the law of placing it there appears—we already talked about it—really it appears only here, if you read the sugya in order, then this is the stage where the law of placing it there appears. Okay? So it appears as an example, or proof, or analogy to the bandits who led it out: just as in the case of one who places it there, it is obvious that he is liable, and therefore we say it is needed only where he stood in front of it, because if he literally placed it there then it is obvious. And once again, why is it obvious? According to Rashba it is easier for me to understand why it is obvious than according to Tosafot. Because according to Tosafot you need to see him as an owner, and he isn’t an owner. So there really would have been room to say that you need the law of placing it there to teach me that even though he isn’t the owner, one can obligate him under damaging property. According to Rashba that really isn’t what is learned here. Rather, a person who places his fellow’s animal onto his fellow’s standing grain is actionable indirect causation. In other words, he is basically liable under the law of a person causing damage. And once he is liable under the law of a person causing damage, then it really is obvious. A person causing damage—it’s true he caused damage by means of an animal, but just as we discussed, like a person causing damage with a hammer. He takes his fellow’s hammer and breaks another person’s jug. Would anyone imagine that he would not be liable because the hammer is not his? The hammer belongs to someone else—what do you mean? This is a person causing damage. The fact that I use my fellow’s property but I do the damage myself, just by means of my fellow’s property—that is a person causing damage. But it’s still a novelty, though. Sorry? It’s still a novelty, because a hammer is my direct force. Okay. Maybe here it’s more of a novelty than a hammer, because a hammer is directly a person causing damage and here it is actionable indirect causation. But we already know the law of actionable indirect causation. We already know that a person causing damage can also be liable not only through his direct force but also through sufficiently direct causation—that is, actionable indirect causation and not mere indirect causation. Once we know the law of actionable indirect causation, this too is obvious. You’re right that it’s less obvious than a hammer, of course, but still I can understand why according to Rashba the Talmudic text says here that it is obvious. According to Tosafot, that is the question. In other words, why is it so obvious according to Tosafot? Somehow it seems that according to Tosafot, a person’s responsibility, even if it isn’t his property, is equally obvious. In other words, if it is clear that you are the one who should be responsible for the thing, even if it is not formally your property, then it is completely obvious that you are responsible; there is no need to teach this. In other words, according to Tosafot, his foundational principle is no less obvious than Rashba’s foundational principle. Because you have to remember that according to Tosafot, from the outset the issue of “your property” isn’t the key point. According to Rashba, what happens is that in damages caused by property it has to be “your property.” Think that he reads the Mishnah like the Rif. So in damages caused by property it has to be your property. Therefore here this is really not under damaging property but under the law of a person causing damage. Under the law of a person causing damage, then it really is obvious. But someone who wants to obligate under damaging property, like Tosafot, then I asked: wait a second, then why is it so obvious? It should need to teach you that there is damaging property even when you are not the owner. But according to Tosafot, we need to understand—not to mix up the Rif with Tosafot. Tosafot, who reads the Mishnah without the words “your property” but rather “anything whose guarding is upon you,” Tosafot will say: fine, then it’s just as obvious as Rashba says it’s obvious. I too say it’s obvious. After all, it is clear that its guarding is upon me. On whom does this guarding fall? I assumed everyone agreed that it has to be his property, so it would need to teach me that something that is not my property is still considered my property with respect to damage liability. But that’s not right. According to Tosafot it does not need to be my property at all. It needs to be that its guarding is upon me. Usually, something that is my property has its guarding upon me, but here there are examples of things where it is clear that their guarding is upon me even though they are not my property. That is equally obvious. Fine. So according to Tosafot, probably the whole movement of “obvious” here is not obvious in the sense that I am the owner and therefore liable, but obvious in the opposite sense: that you do not need to be the owner in order to be liable. All that is needed is that it be clear that if there is anyone responsible here, it is you. Or not someone else. It is simply logical. I think anyone you stop on the street and ask who is responsible in such a case—everyone will say that the responsible party is the bandits. Yes, that’s obvious, it’s simple logic. Okay, so I return now to the case of placing it there. So look: in the case of placing it there, when I speak about that case—we saw a dispute between Tosafot and Rashba, and now we have an additional case: placing it there where he stood in front of it, and that too is liable. That is no longer obvious, right? But it is liable; that is, the law is that he is liable. Now how to explain this according to Tosafot and according to Rashba? We can understand, according to Rashba, that you really need to be an owner. So if one who places his fellow’s animal onto his fellow’s standing grain is liable under the law of a person causing damage, or actionable indirect causation, and not under damaging property, then where he merely stood in front of it, obviously this will not be damaging property, right? It’s only more remote. If literally placing the animal with my own hands on my fellow’s grain is not direct enough for me to be considered its owner—because according to Rashba I need to be an owner in the full proprietary sense. There is no such thing as ownership for purposes of damage liability. I need to be the owner. So if one who places it there is not an owner, then one who merely stood in front of it is certainly not an owner. Notice, we are not speaking here about bandits. We are speaking here about one who places it there and merely stood in front of it. In the case of bandits who stood in front of it, you can say they have some sort of intention perhaps to steal; they came, after all, the Mishnah is speaking about bandits. And that was interpreted as standing in front of it. Now there is some intention to acquire; there was no pulling, but there was some sort of indirect steering by standing in front of it. But there is some intention to acquire there; maybe one can somehow expand the concept of acquisition through robbery. But in the case of one who places it there and merely stands in front of it, there’s nothing to talk about. In that case it is clear he did not intend to acquire, he did not perform pulling, he is not a robber—there is no side in the world on which he could be considered an owner. And if according to Rashba only a full owner is liable for the damages of the animal, then there is no point speaking here of damaging property. In other words, one who places it there and merely stood in front of it is a person causing damage. This is actionable indirect causation. And the novelty is that you do not need to lead it, say, to place it on the grain with your own hands; it is enough that you stood in front of it. That too is considered like placing it there. And then you will be liable under the law of actionable indirect causation, a person causing damage. That is a novelty, but okay—that is still from the same category. According to Tosafot, in the case of placing it there, you are considered an owner—not an owner, but someone who is responsible and must guard it, and therefore responsibility for the animal is on him. In the case where he stood in front of it, according to Tosafot I assume it is clear that there too he will not be a person causing damage. If one who places it there is not a person causing damage, then one who stood in front of it certainly is not a person causing damage. Here the hierarchy is reversed, right? In other words, if one who places it there is not an owner, then one who stood in front of it is even less an owner. If one who places it there is not a person causing damage—that is, this is not direct enough—then one who stood in front of it, which is even more indirect, is certainly not a person causing damage, right? Therefore, according to Tosafot, when he says that in the case of placing it there you are liable under damaging property, it is clear that one who stood in front of it cannot be a person causing damage. Therefore it is clear that one who stood in front of it too is liable under damaging property. And the novelty is that you are sufficiently involved in the damage for us to see you as responsible. Not involved in the damage—sorry—sufficiently, yes, for us to see you as responsible, sorry, right. You are sufficiently at fault in this matter for us to see you as the responsible party, and you become liable under damaging property. Then it comes out that one who places it there and merely stood in front of it is like one who places it there without that, both according to Tosafot and according to Rashba. According to Rashba, both are a person causing damage; according to Tosafot, both are damaging property. And really here we have to remember that in the dispute of Tosafot and Rashba regarding one who places it there—and this is the calculation I just made—we are assuming two sides here. And that is an important point. Many times when there is a dispute among the medieval authorities—or among Amoraim, it doesn’t matter—about a Mishnah, about how to explain a certain case, the dispute is actually a double dispute. There are really two disputes. Why? Because on the one hand Rashba disagrees with Tosafot on the question whether one who places it there can be seen as an owner. Rashba argues no, and Tosafot says yes. Because Rashba argues that ownership for damages means ownership also on the proprietary level. Okay? So that is one dispute. The second dispute is: if not, then what? So the question is: if this is damaging property, then what is it—a person causing damage? If you are not an owner, then this is not damaging property. So what is it? It is a person causing damage. Rashba says right: one who places it there is a person causing damage. This is sufficiently actionable indirect causation, sufficiently direct enough to be considered actionable indirect causation. But what does Tosafot, who argues it is damaging property, say? Presumably that this is not direct enough causation to place it under actionable indirect causation. He does not see this as a person causing damage. Do you understand that what Rashba says Tosafot disagrees with, and what Tosafot says Rashba disagrees with? This is a double dispute. And many times when we find two explanations—almost always when we find two explanations for a certain case—the meaning is that between those medieval authorities there are two disputes. First, can one who places it there be considered a person causing damage? Rashba says yes; this is sufficiently direct causation to count as actionable indirect causation. According to Tosafot this would probably count only as mere indirect causation. Fine? That’s one dispute. The second dispute is the question whether he can be considered damaging property. If it is not damaging property, then Rashba is forced to say that this must have been a person causing damage, actionable indirect causation, right? And Tosafot will say no, what do you mean, this is damaging property; it’s not a person causing damage, it’s only indirect causation. So why is it damaging property? Because for damaging property you do not need to be an owner. So one dispute between Rashba and Tosafot is the question whether placing it there is mere indirect causation or actionable indirect causation. That is a dispute unrelated—just a separate first dispute. The second dispute is whether I need full ownership in order for damage responsibility to be imposed on me under damaging property. Rashba says yes; Tosafot says no. Two disputes, and by the way they are independent; this is not one dispute over the same underlying reasoning. The connection between them is that the first dispute forces the second even though there is no intrinsic connection between them. Do you understand? This is often a calculation you need to make in the Talmudic text, because many times there are two disputes that have no common foundation. Usually we say we do not multiply disputes—we don’t make two disputes between medieval authorities or between Amoraim or Tannaim. Why assume there are two disputes? They disagree about one thing; why assume there are two? But whenever they explain a certain case differently, the dispute is always doubled. Because Rashba’s explanation is not accepted by Tosafot, and Tosafot’s explanation is not accepted by Rashba. Those are two separate disputes, and there is no connection between them. The question whether for damages—damages caused by property—you really have to be an owner or not: that is one dispute related to damages caused by property. The second dispute is a dispute in the laws of actionable indirect causation altogether: can one who places it there be considered actionable indirect causation, or is this only indirect causation? There is no connection. But clearly one dispute forces the other, because if you think you need to be a full owner in order to be liable for damage responsibility, and one who places it there is not a full owner in proprietary terms, then you have no choice but to say that placing it there is actionable indirect causation. Otherwise you won’t succeed in explaining the Talmudic text that obligates one who places it there. So it’s not that there is a connection between the two disputes, but the constraint posed by the first dispute gives rise to the second. Okay? Fine, so those are the two disputes between them. Okay, so now let me summarize and say this: according to Tosafot, one who places his fellow’s animal onto his fellow’s standing grain is damaging property. In other words, he is considered not as an owner but as the one responsible for guarding the animal because he is to blame. It’s not right to say that he is considered—yes, he is considered as… when I write that he is considered an owner for purposes of damage liability, that does not mean he is considered an owner. Rather, you do not need to be an owner. He is considered the one who has to guard it—that is the point, yes? He did not intend to guard it, did not intend to acquire it, the one who placed it there, but that does not trouble Tosafot; he is not looking for ownership. Okay. What happens when the one who placed it there merely stood in front of it? Certainly he did not intend to acquire, even less intended to acquire, and therefore again this could only seemingly be from the side of a person causing damage. But as a person causing damage, Tosafot does not accept that this is a person causing damage, and therefore he does not accept that one who places it there counts as a person causing damage; one who merely stood in front of it is even less a person causing damage. Therefore it cannot be—therefore it is clear that Tosafot sees both one who stood in front of it and one who placed it there as damaging property. Fine? Good, so that is with regard to one who places it there and merely stood in front of it. What happens with bandits who stood in front of it? Up to here I spoke about the ordinary case of placing it there and the case of placing it there where he stood in front of it. Now let’s talk about the ordinary case of bandits and bandits who stood in front of it. So ordinary bandits—we already saw in Tosafot—that is presumably the case of “obvious.” What did we see in Tosafot? That basically the bandits are considered owners. Here actually this is not merely damaging property; rather they are owners according to Tosafot. Why? Because they have acquisition through robbery. But this is not complete acquisition through robbery, as Rashba explained; rather these are certain acquisitions through robbery that, because of this logic that the responsibility should rest on you, we expand your ownership and you are basically considered an owner with respect to damage liability. That is with regard to—why is it not complete acquisition through robbery? What? I mean, why is that not called complete acquisition through robbery according to Tosafot? Because there was no change; there was only despair. That was the previous class. Is this not about leading it out? Also leading it out. Leading it out is a change. No—what change? Maybe a change of domain? No, Rashi writes that it is a change of domain. That is why I said Rashi goes with Rashba, because it isn’t really—ordinary “change of domain” that we find in the Talmudic texts is where the robber sells it to someone else. Entry into the robber’s domain is not a change of domain. Rashi calls it despair and change of domain because he wants to say, “I hold like Rashba.” As far as I’m concerned, even the robber’s own domain is called a change of domain, and therefore it is full acquisition—except that there is still an obligation to return it. We discussed this in the previous class. But in terms of the acquisition, it is full acquisition. Tosafot says, “What do you mean? Change of domain is when the robber sells it onward.” What he has in the meantime is acquisition only to obligate him for unavoidable accidents, but he does not have full acquisition. Fine? Therefore the bandits, if they did not merely stand in front of it, are owners. What happens if the bandits stood in front of it? That’s more delicate. Because on the one hand, bandits who stood in front of it are certainly not a person causing damage, right? Because bandits who stood in front of it do not differ from one who places it there and stood in front of it. Why should I care whether they are bandits or not bandits in terms of the directness between their act and the damage? The question whether they are bandits or not is only relevant if they have intent to acquire. In terms of the question of how much their contributory fault contributed to the creation of the damage, I don’t care whether they are bandits or not bandits, right? Therefore I need now to check the two levels of the dispute between Tosafot and Rashba. First, is this mere indirect causation or actionable indirect causation? Second, is this a person causing damage or not—is this damaging property or not, if you are an owner? Right? So let’s do the bookkeeping. According to Tosafot, the ordinary case of one who places it there is damaging property. Why? Because if he is at fault, then the Torah imposed damage responsibility on him. That means he understands that placing it there is not actionable indirect causation but mere indirect causation, so he is unwilling to see it as a person causing damage; he sees it as damaging property. And his novelty is that even though he is not an owner, one can obligate him under damaging property. Now I ask: if that is so in the case of placing it there, then where he merely stood in front of it, that certainly is so too, right? What happens with bandits? Ordinary bandits have ownership because they intended to acquire and they pulled it, but bandits who merely stood in front of it—that is very problematic. Because on the one hand, “stood in front of it” according to Tosafot cannot be a person causing damage. Because if one who places it there is not a person causing damage, then if he did it in an even more indirect way than directly placing it there—just standing in front of it—that certainly is not a person causing damage. On the other hand, though, this also cannot be damaging property. Because in the ordinary case of bandits Tosafot said: why do I see this as damaging property? Because you are the owner, because you have acquisition through robbery. Partial acquisitions, only with respect to unavoidable accidents. And the logic says that we shape this so that it will include damage liability as well. But in the case where they merely stood in front of it, you do not even have those acquisitions through robbery. They still haven’t performed the act of robbery; they didn’t pull it. So it comes out that according to Tosafot you cannot obligate either under damaging property or under the law of a person causing damage. So what happens? How are we to understand why bandits who stood in front of it are liable? The answer is that bandits who stood in front of it are liable just like one who places it there and stood in front of it. And according to Tosafot, one who places it there and stood in front of it is considered as an owner, right? Because if he is at fault, that is enough for him to be considered an owner; he doesn’t need to acquire it. Now, even if this standing in front of it is done by bandits, I don’t care; their being bandits doesn’t interest me here because there is no acquisition through robbery. But according to Tosafot you don’t need to acquire. According to Tosafot it is enough that you are at fault in the damage that occurred for the Torah to see you as responsible. So why should I care whether you are bandits or not bandits? If standing in front of it is enough fault for us to see this person as responsible for the damages caused by the animal, then even if he is a bandit that certainly isn’t worse; he even intended to acquire, so here he can only be seen as even more of an owner for the purpose that the animal should be considered his. That is the reasoning according to Tosafot. Now look: Tosafot, under the heading “one who places it there,” writes: “Even though the animal is not his, he is liable under the category of tooth and foot, for even though Scripture says ‘his beast,’ it is considered as if it were his, since he did it.” Right? It comes out that according to Tosafot, the novelty is that “stood in front of it” is enough to count as “he did it” for the purpose that we consider him the owner of the animal. Not in the sense that “he did it” means actionable indirect causation, because that “he did it” could go in two directions. According to Tosafot this does not count as “he did it” for purposes of actionable indirect causation, because even directly placing it there with one’s hands is not considered actionable indirect causation. Rather, it is enough fault for us to see him as the responsible party and obligate him under damaging property. Okay? And therefore the same of course also for bandits who stood in front of it. Bandits who stood in front of it are sufficiently at fault for us to see them as responsible—not because they are bandits, but because they stood in front of it. In other words, even if they were not bandits, it would be the same. And therefore the Talmudic text says that in the case of bandits we are talking about standing in front of it, just as I told you in the case of one who places it there and stood in front of it. It is the same idea. The Talmudic text, after all, brings proof from one to the other. In other words, just as in the case of standing in front of it in the case of one who places it there, I showed you that such responsibility is enough for us to see you as the owner or the responsible party for the damages of this animal, so too in the case of bandits: true, they didn’t acquire it because there was no pulling, but the bandits are no worse than any other person who, if they stood in front of it, this is sufficient responsibility for us to see them as responsible for the damage. They are not owners in the proprietary sense; they don’t even have acquisition through robbery. Even with respect to unavoidable accidents they would not be liable—if the animal were subject to an unavoidable accident, they would not be liable, because they do not even have acquisition through robbery for unavoidable accidents at this stage; they didn’t pull it at all. Okay? But with respect to your fault in the damage that happened, how is this different from one who places it there and stood in front of it? It is the same thing. And that is the proof the Talmudic text brings from one who places it there and stood in front of it to the bandits who led it out and stood in front of it. That is basically the reasoning according to Tosafot. In the case of a watchman, by the way, that really is an unusual situation, because in the case of a watchman what we obligate him on—what do I mean by unusual? In the case of a watchman, what we obligate him on is basically the contract. Right? We saw in Tosafot that the logic that you are the one responsible because there is no one else on whom to place the responsibility basically shapes another component that already existed beforehand. In the case of a robber, that component is acquisition through robbery, and the logic shapes acquisition through robbery so that you are considered an owner. In the case of a watchman, the additional component is the contract between you. But if that is so, then the conception of a watchman’s damage liability is a contractual conception. Then it comes out that the watchman’s responsibility is toward the depositor, not toward the injured party, by force of his contract with the depositor. Right? Then what comes out is that the injured party sues the owner of the animal. After that the owner of the animal goes to the watchman and says: I have a contract with you; why didn’t you guard it? Compensate me. If so, then a watchman does not belong to our discussion. All the cases I’m discussing here—I presented them in the context of cases where someone is obligated for damages caused by an animal that is not his. In the case of a watchman that is not true, because I am not obligating him for the damages of the animal. For the damages of the animal, the one liable is the owner of the animal. The watchman is liable only to the owner of the animal by force of the contract between them. That is not damage liability. It is simply their contract—if you signed a contract, honor it. So this is not from the category of damages. It’s not the laws of damages. It is the law of contracts. Under damage law, the owner of the animal has to pay the injured party. Under contract law, the owner of the animal will come to the watchman and say: as far as I’m concerned, you are the insurance company; pay me for not fulfilling the contract. So according to Tosafot there is no example here of someone being liable for damages caused by an animal that isn’t his, because the watchman is not liable in damages. The watchman’s liability is contractual, not tortious. Therefore the watchman drops out of the picture according to Tosafot. Okay? Fine, let’s stop here for a few minutes to refresh ourselves—four or five minutes—and we’ll come back to Rashba and the continuation of the class. Now according to Tosafot, yes. According to Tosafot, why can’t we say that the watchman comes under the category of owner and is considered the owner now? Because if it’s from contract law, then it’s a matter between him and the owner, not between him and the injured party. I’m just now remembering—I need to check this—there is some puzzling Maimonides that many people asked about. I think it’s maybe in the laws of hiring, chapter 4—I need to look at it for a moment—because he writes there that if someone gave an animal to a watchman and the watchman is not liable, the owner is liable. And many have challenged him from the Talmudic text, that it goes against the Talmudic text. And there are all kinds of later authorities who explained him—the Maggid Mishneh and Rabbi Chaim and so on—while on the side in the Kesef Mishneh it appears in the name of Rabbi Abraham son of Maimonides that it is a scribal error. And everyone rudely ignores that. Wait. Ah, here, law 4—why “with us”? Look here, Laws of Damage to Property, not the laws of hiring, chapter 4, law 4. This is really right after he brings the laws from our Mishnah. “One who gives over his animal to an unpaid watchman or a paid watchman or a renter or a borrower—they enter in place of the owner. And if it caused damage, the watchman is liable. In what case is this said? When they did not guard it at all. But if they guarded it with excellent guarding as is proper, and it went out and caused damage, the watchmen are exempt and the owners are liable.” Those words are Maimonides’ addition that everyone shouts is incorrect. “The watchmen are exempt,” full stop. The owner is exempt because he gave it to the watchman, and the watchman who guarded it properly is also exempt because he fulfilled his duty, he guarded it properly. But Maimonides writes that when the watchmen are exempt because they guarded it properly, the owners are liable. And everyone asks on this—yes, the Ra’avad already asks here: “Rabbi Abraham said: this was only established when he had time to know,” or all sorts of things like that—there is no such thing. And there is a long discussion here. Now suddenly I’m remembering this Ra’avad because it could be that what Maimonides meant to say is that ultimately the owners are always liable if they gave it to a watchman. The whole accounting with the watchman, whether he guarded properly or not, is only a contractual accounting between him and the owners. So in that case, once the watchman is exempt, then he is exempt from reimbursing the owners for what the owners pay the injured party, but the owners still have to pay it to the injured party. This is connected a bit to things we saw from Even HaEzel at the beginning of the semester and all sorts of things like that, because after all the animal really was guarded properly. So even if I, the owner, didn’t guard it, but someone else did it for me, why obligate me? After all, the animal was guarded properly. But it seems to me that in this direction that we saw here in Tosafot, one can also explain Maimonides. And what the Ra’avad says on the next-to-last line, “Rather, one must say that the owners are never removed from the injured party”—basically what he means, no? Yes, yes, but I think he says it in his own framework. “Rather, one must say that the owners are never removed from the injured party, and they adjudicate with the watchman; if it caused damage while under his watch, the owners can return to the watchman, and if his term of watch ended, he is exempt and the owners are liable.” Yes, but here he is speaking about when his period of watch ended, not when it didn’t end. Yes, he is speaking about a watchman for a fixed time. And by saying that they are never removed from the injured party, that means the injured party always goes to the owners; he deals with the owners. No, but the question is if the animal wasn’t—he is speaking where the animal was not properly guarded. But here we are speaking where it was properly guarded. That is the Ra’avad’s approach; that’s something else. In Maimonides himself he doesn’t agree with that—that’s what he says. Because on Maimonides, after all, he asks: “This was only established when he had time to know.” You know, we already saw this in the sugya at the beginning of the chapter, that if the animal broke out and the owner had time to know, then responsibility returns to him. But in Maimonides himself it is written that once the watchman is exempt, the owner becomes liable again. So you see here again—we still need to explain it—but it is clear, you see here, that the whole discussion whether the watchman is exempt or not exempt is relative to the owners, but the owners are liable to the injured party regardless. Okay, and the question is why indeed when the watchman did not guard properly, then seemingly there too the owners really ought to pay and the watchman should reimburse the owners by force of contract law. But here it could be that there is some principle like Rabbi Nathan’s lien, that if I owe you and you owe him, then he can sue me directly. But really on the conceptual level this is a liability of the owners and not a liability of the watchman. That really is an expression of an unmistakably contractual conception of the watchman’s obligation, what we saw here in Tosafot, and you should notice that this law 4 in Maimonides appears immediately after the laws we have here: “one who gathers sheep into a pen and properly locks it before them,” that’s law 1. Right? “Bandits led it out, the bandits are liable”—that’s the end of law 1. “One who breaks open a fence in front of his fellow’s animal,” that’s law 2. Right? “If it was a shaky wall, a strong wall, one who places poison before his fellow’s animal.” “One who places his fellow’s animal”—that’s law 3. Fine? “And so too if he struck it until it went to his fellow’s grain and caused damage”—and law 4 is “one who gives over his animal to an unpaid watchman.” And these are really the collection of laws we are dealing with here in the sugya. The watchman came up only in Tosafot, but I’m adding it because this too is an example of liability for a person for damages caused by an animal that is not his. And in that sense Maimonides also gathered everything here into the Laws of Damage to Property, chapter 4. And in that sense it seems a bit like contractual liability, like Tosafot. At least that’s how it seems to me at the moment. Okay, let’s get back to our line of thought. So up to here that’s Tosafot. What about Rashba? We now do the same accounting, or a parallel accounting. According to Rashba, one who places it there is a person causing damage. Right? The one who places it there did not acquire the animal; he is not its owner on the proprietary level, so it is impossible to obligate him under damages caused by property, and therefore we obligate him under the law of a person causing damage. And the act of placing it there is basically some kind of damage by actionable indirect causation. Okay? Now in the ordinary case of placing it there—that’s the ordinary case. In the case where he stood in front of it, what do you say happens there? The same thing, right? Actionable indirect causation, actionable indirect causation. It cannot be that he is considered an owner in the case where he merely stood in front of it, because if in the case where he places it there with his hands he is not considered an owner, then in the case where he merely stood in front of it he is even less an owner. Rather, just as in the case of placing it there he is considered a person causing damage by actionable indirect causation, the novelty is that where he merely stood in front of it—even though that is easier—the novelty is that even if he merely stood in front of it and did not do it with his hands, it is still considered actionable indirect causation. In other words, yes, a type of person causing damage. Because according to Rashba there is no such thing as fictive ownership for damages, and here that certainly does not apply. So in the case of placing it there, whether he merely stood in front of it or not, this is basically a person causing damage, and both are considered actionable indirect causation. The novelty in standing in front of it is that even a more indirect kind of causation than directly placing it there—rather, standing in front of it—is also considered actionable indirect causation for obligating him. What happens with bandits? So in the case of bandits who did not merely stand in front of it, Rashba says they have full acquisition through robbery and this is under damaging property. Right? Because he holds that acquisition through robbery before the change—despair alone is enough—that acquisition through robbery is complete acquisition, including damage liability. But now here’s the catch. What happens with bandits who stood in front of it? Bandits who stood in front of it are problematic. Why? Because bandits who stood in front of it do not have acquisition through robbery, because they did not pull it. Right? So what will you say? That bandits who stood in front of it are a person causing damage, just as one who places it there and stood in front of it is also a person causing damage. Right? But then it really comes out that bandits who stood in front of it are a person causing damage, just as one who places it there and stood in front of it… wait, no, yes, one who places it there and stood in front of it is a person causing damage, and bandits who stood in front of it are also a person causing damage. Bandits who physically led it out, then they acquired it through acquisition through robbery, and this is damaging property. They are its owners, and this is damaging property. But if they merely stood in front of it, the bandits did not lead it out but only stood in front of it, then they did not acquire it because there is no pulling. Right, and as we already saw, in terms of involvement in the act of damage, it doesn’t interest me whether these are bandits or not. If someone stands in front of an animal and our question is how much his involvement contributed to the damage, then what difference does it make whether he is a bandit or not? If that involvement is enough to count as actionable indirect causation, then that is true for bandits exactly as for an ordinary person. And a watchman? Regarding a watchman, he certainly is not an owner, so according to Rashba there is nothing to talk about in the case of a watchman, right? A watchman cannot be an owner. So therefore in the case of a watchman, it is either what we discussed in the previous class—that this is from contract law as we saw in Tosafot, and then the liability is toward the owner—or the Torah established the damage responsibility for the watchman, even though he is not an owner, as part of the laws of watchmen. Because we saw that even the ordinary laws of watchmen—the contract of the watchman with the depositor—also that was established by the Torah; it is not they who determine it among themselves, right? After all, the laws of watchmen are established by the Torah. If you stipulate, then you make whatever contract you want, but as long as you did not stipulate, the contract between depositor and watchman is a contract the Torah shaped. So it may be that Rashba argues that the Torah also imposed liability on a watchman—damage liability for the damages of the animal—and then this is not contractual liability but liability toward the injured party. Okay, that’s what I said in the previous class. In any case, it is clear that according to Rashba, who requires complete acquisition, he will not be liable under the ordinary category of damaging property; in any event this is some special law. Now the Talmudic text continues. I’ll share the file for a moment. The Talmudic text says: Abaye said to Rav Yosef, “Is this what you told us? And with bandits too, that they struck it.” What does that mean? You say that we are talking about “stood in front of it,” right? That the bandits stood in front of it, just as in the case of placing it there we found that he stood in front of it. Abaye says to Rav Yosef: just as in the case of placing it there—in that case, Rav Yosef, you told me that we are speaking of striking it, not merely standing in front of it—so too in the case of “bandits led it out,” we should interpret it as striking it and not standing in front of it. Now here this is a very delicate point. Why? According to Tosafot it’s simple. Why? Because according to Tosafot, what is the liability of standing in front of it in the case of placing it there? It is under damaging property, because someone at fault is seen as responsible for the damages of the animal, right? In the case of bandits, then it depends. If they acquired it because they pulled it, then they really have acquisition. But even if not, it does not matter to me, because in the end, if they merely stood in front of it, then they are sufficiently at fault for us to impose responsibility on them even without acquisition through robbery; therefore they are liable. Okay. Now what is the relation between placing it there and bandits? Someone who in the case of placing it there does not accept “stood in front of it” but argues that it must be “struck it”—“struck it” means with a stick. Because “stood in front of it” means directing it without touching it. “Struck it” is a more direct action upon the animal. So that is basically what Abaye argues against Rav Yosef. “Stood in front of it” is not enough; it has to be “struck it.” So if in the case of placing it there, where Tosafot obligates under damaging property—responsibility for damaging property—I say “stood in front of it”: you are not sufficiently at fault to be considered the owner of this property; by “struck it,” yes, right? What happens in the case of bandits? In the case of bandits, when you lead it out through merely standing in front of it, then according to Tosafot why are you liable? Under damaging property, not under a person causing damage, right? So Abaye says: why is it under damaging property? Because you are at fault in having stood in front of it. But if in the case of placing it there you say that merely standing in front of it is not enough fault to be considered an owner, then in the case of bandits too, where they did not pull it, that too is basically like the case of placing it there. If you are not sufficiently at fault, then in the case of bandits too you will not be sufficiently at fault, and therefore it has to be specifically “struck it.” So the analogy or proof brought from the case of placing it there—the argument between Rav Yosef and Abaye whether we are speaking of standing in front of it or striking it—that analogy is good also regarding bandits. Okay, that is according to Tosafot. What happens according to Rashba? According to Rashba, the situation is more complicated, because according to Rashba the liability in the case of placing it there is under the law of a person causing damage, and when you did not place it there but merely stood in front of it, then again a person causing damage means actionable indirect causation. And on that Abaye comes and says: yes, but standing in front of it is not enough; that is mere indirect causation, not actionable indirect causation. Only striking it is actionable indirect causation, because you need an actual blow by hand. If you only stood in front of it, that is indirect causation, not actionable indirect causation. Right? That is what he claims in the laws of placing it there. Now how do we transfer that to bandits? In the case of bandits, according to Rashba you are liable under damaging property, because there is acquisition through robbery. But bandits who stood in front of it—that is damaging property. Wait, ordinary bandits are damaging property. Ordinary bandits, acquisition through robbery—that’s damaging property, no? Even according to Rashba. Right, damaging property. Yes. Now what happens when they merely stood in front of it? There was no pulling. No pulling, no acquisition through robbery. According to Rashba, if there is no acquisition through robbery, no complete acquisition, there is no such thing as damaging property. This is a person causing damage, actionable indirect causation. Okay? So if that’s the case, then here too Abaye says to Rav Yosef: in order to count as actionable indirect causation, you need direct causation; that is only “struck it.” “Stood in front of it” is not enough. Okay? So that is the analogy between placing it there and bandits. Okay? Between placing it there and bandits. I’ll tell you what bothers me. In the case of placing it there, it is damaging property, and in the case of bandits… no, fine, leave it. Fine, the analogy is fine. In the medieval authorities, when they look at “struck it,” Rashi writes as follows: “And with bandits too, that they struck it with a stick, and the Mishnah teaches us that striking with a stick is considered pulling.” So what do we see? This is damaging property, via acquisition through robbery. And he speaks in terms of ownership; he does not speak in terms of the directness of the causation. He does not want to say that striking it with a stick is only sufficiently direct causation to count as actionable indirect causation; otherwise it would be mere indirect causation. Rashi says no, the novelty is that striking it with a stick is called pulling. You do not need actual pulling; even striking with a stick is pulling. In other words, Rashi understands that in the case of bandits who did not pull it, the liability is under damaging property. I acquired it, and therefore it is my property and I am liable for it as damaging property. Right? Rashi really writes here like Rashba. Rashi writes like Rashba that for the bandits to be liable they need complete acquisition; that is why he says this is despair and change of domain. In other words, he sees this as liability under a person’s property, so we already said that Rashi is like Rashba. And according to Rashba, in the case of striking it with a stick, striking it with a stick is a person causing damage. Right? We saw that there, because Rashba, after all, wants ownership. Now here we see in Rashi that here he departs from Rashba’s words: he claims that striking it is pulling, unlike merely standing in front of it. What then is “stood in front of it”? I don’t know—perhaps Rav Yosef wants to argue that even standing in front of it should count as pulling, or he wants to say no, standing in front of it really obligates under actionable indirect causation. But then why do you need striking it with a stick? Just say that striking it with a stick is even more actionable indirect causation than standing in front of it. Therefore it seems that the whole story revolves around the concept of ownership, and in that sense Rashi is not like Rashba. Except that Rashba himself, when he writes here, says as follows: “And we established it where they struck it, because since they struck it in order to rob it, they acquired it, and it is in their possession with respect to guarding its damages. And so too it appears from the words of Rashi, that by striking it in order to rob it, and because they acquired it through the strike, and so too they explained it in the Jerusalem Talmud.” So Rashba too says that when they struck it, the liability is under damaging property: he acquired it. But notice his reasoning: “Since they struck it in order to rob it, they acquired it.” What about one who places it there and strikes it? After all, he did not intend to rob it. There the strike won’t acquire it; there the strike will be damaging property. We have to say that this is not a real comparison; it’s an illustration. Just as there you have that interpretation, the same interpretation I will give you here, although for a different reason, on a different basis. But it is really only a technical comparison; in other words, there is no substantive analogy between them. That is what has to be said according to Rashba. And maybe also in Rashi, because when Rashi says “with bandits too, that they struck it,” Rashi explains this about bandits who struck it: that the strike is like pulling. He does not say what happens in the case of one who places it there by striking it. In the case of one who places it there by striking it, where he did not intend to acquire, perhaps Rashi did not explain that because of the pulling he is considered an owner; he says that only about bandits. Then it could be that he does not depart from Rashba’s path, but continues with Rashba. According to Tosafot, there is no need to get into all that. According to Tosafot, when you strike it—“struck it” in the case of bandits and “struck it” in the case of placing it there—that is damaging property. Why is that damaging property? Not because I acquired it by pulling; you do not need acquisition in order to be liable under damaging property, but because I am responsible. On whom will you place the responsibility if not on me? All the more so from there onward. So according to Tosafot the analogy between “struck it” in the case of bandits and “struck it” in the case of placing it there is self-evident, because it really is the same principle. According to Rashba, that analogy is a problematic analogy. On the other hand, if according to Rashba the analogy is problematic, why is it problematic? Because bandits who struck it acquired it and are liable under damaging property. One who places it there and struck it is liable under the law of a person causing damage. Now I say: but if striking it is sufficiently direct causation to count as a person causing damage, then why in the case of bandits would you not say the same thing? Even without the strike acquiring it. The strike does not acquire it, but after all if you were not a bandit you would obligate me as a person causing damage even if I did not acquire it. So why if I am a bandit do you not obligate me on that basis? Seemingly there ought to be here both the law of a person causing damage and the law of damaging property. He prefers to explain it as damaging property so as not to enter into the laws of actionable indirect causation. It is more convenient for him to say this is damaging property and not actionable indirect causation. But according to his own approach this is actionable indirect causation here, because in the case of placing it there, he in fact obligates for this even though he did not intend to acquire. So we see that if I struck the animal, that is sufficiently direct causation to obligate me under actionable indirect causation. So why if bandits do it are they not liable under actionable indirect causation? Why there do you have to say that the strike acquires it in order to obligate them under damaging property? I don’t know; I don’t have a good answer to that. Okay, now let’s move for a moment to Maimonides. Maimonides, Laws of Damage to Property, one law before the previous law we saw, there in chapter 4. “One who places his fellow’s animal on top of his fellow’s standing grain, the one who places it there must pay for what it damaged.” Up to here, clear. Why must he pay? Damaging property? A person causing damage? Seemingly I don’t know, although one has to notice that this appears in the Laws of Damage to Property and not in the Laws of Injury and Damage. If this is a person causing damage, then seemingly it ought to have appeared in the Laws of Injury and Damage. That is not a million-dollar proof, because after all in other contexts this is damaging property, so Maimonides already brings it here—you are, after all, damaging by means of an animal. True, conceptually he is really liable under the law of a person causing damage, but still when someone looks for this law in a legal code, where will he look for it? He will look for it among the laws that speak about damage done by animals. Therefore I’m not sure one may infer from Maimonides’ placement of the law in the Laws of Damage to Property that this is damaging property. Fine, that is one initial remark. “And likewise if he struck it,” I continue reading, “until it went to his fellow’s standing grain and caused damage, the one who struck it is liable.” Here there is already a very interesting point. Before, he only brought the Talmudic text, nothing more. Here what does he say? “He struck it until it went to his fellow’s standing grain and caused damage.” Why do we need to go that far? According to Rashi and Rashba that we saw, striking it acquires it. Once striking it acquires it, the animal is mine, and now if it goes and damages I am responsible, right? Clearly according to Rashi and Rashba you do not need to strike it until the place of damage. It is enough that I struck it—that counts as pulling, I acquired it. Now it goes on its own to the place of damage and causes damage; my animal caused damage and I am liable for it. Maimonides does not learn that way. We clearly see that he does not. Maimonides understands differently. Maimonides says you have to strike it until it goes to the standing grain of his fellow and causes damage. What do we see? That Maimonides understands that in the case of striking it, the one who struck it is liable under actionable indirect causation and not under damaging property. He did not acquire the animal. It is not his, and he is not liable for it under damaging property. This is actionable indirect causation. Therefore he has to strike it until the place; otherwise it is mere indirect causation, not actionable indirect causation. After all, this one who struck it basically has to be liable like one who places it there. If you literally place the animal there, that is really actionable indirect causation. But when you strike it, if you strike it only in order to acquire it and then it goes another kilometer and eats, that does not belong to actionable indirect causation; it is barely even indirect causation. At most this is an owner who was negligent in guarding. Okay? But if you did not acquire it, then you are not an owner either, so there is nothing at all. So this is like “the bandits broke it open” and bandits who break open are exempt. Why are they exempt? Because this is indirect causation, right? Therefore they are exempt. So in Maimonides we see that the liability in the case of one who places it there and struck it is under actionable indirect causation. According to this it comes out that in the case of bandits too, if we are talking about striking it, then of course this will be actionable indirect causation, because there is no difference between bandits and an ordinary case of placing it there. The moment you strike an animal until the grain and there it eats, that is considered your direct causation and you are obligated under actionable indirect causation, not because your property caused damage, right? Now in fact, regarding bandits Maimonides does not bring the law of “they struck it.” The commentators on Maimonides already ask here why he does not bring the law of “they struck it” regarding bandits. One more remark: really, according to what I said before, it comes out that here according to Maimonides he is liable under actionable indirect causation, right? That means this is not damaging property but a person causing damage. Even though this law appears in the Laws of Damage to Property. That’s the remark I made before—that I’m not sure how much the location of the law is an indicator. Obviously the reasoning Maimonides himself writes is stronger than the fact that he located the law in the Laws of Damage to Property. Yes? So it is fairly clear he is speaking here about actionable indirect causation. Now what happens with bandits who struck it? As I said, seemingly what difference is there between one who places it there and struck it and bandits who struck it? In both cases this is actionable indirect causation. So that too should basically be liable. Okay? At the end of law 1 Maimonides writes: “If there was a strong partition and it was breached at night, or if bandits breached it and it went out and caused damage, he is exempt. If the bandits led it out and it caused damage, the bandits are liable.” And it does not say: if they struck it. There the liability of the bandits is because of ownership—it is damaging property, right? That is what we saw in the Talmudic text. Okay? So there certainly one does not need striking it until the place of damage, right? Because once you acquired it, then you have ownership. As an owner you are liable for the damages of the animal even if you did not strike it all the way to the end. That is the reason Maimonides does not bring the law of “they struck it” regarding bandits. Because with regard to one who places it there, Maimonides understands—he has to bring the law of “struck it” because the law of “struck it” is actionable indirect causation; you are not an owner. So Maimonides had to say that we are speaking where he struck it up to the place of damage. But in the case of bandits, even if they struck it and then left it, they acquired it. Once they acquired it, then you do not need to reach the issue of “they struck it” or not. They acquired it and are liable as owners. Okay? What about “stood in front of it” according to Maimonides? He does not bring “stood in front of it.” This is the place to say that Maimonides indeed rules in practice like Abaye against Rav Yosef: only in the case of “they struck it” are they liable; in the case of “stood in front of it” they really are not liable. And it seems he says this both for bandits and for one who places it there. And why? Because once “stood in front of it” is not enough for actionable indirect causation, right? If “they struck it” requires striking it until the place of damage, otherwise it is not enough for actionable indirect causation, then “stood in front of it” is not enough for actionable indirect causation, and therefore he really would be exempt. That’s why he does not bring the law of “stood in front of it.” And in the case of bandits, why does he not bring the law of “stood in front of it”? After all, regarding bandits you seemingly do not need actionable indirect causation; it is enough that you are an owner. The answer is that in the case of bandits, once he merely stood in front of it and did not strike it, then they also did not acquire it. In other words, that serves two roles: it is both not actionable indirect causation and also not pulling in order to acquire. Both things are true according to Maimonides. Therefore he brings neither “stood in front of it” for bandits nor for one who places it there. There is only one remark in the Ra’avad, but I’ll leave it for you because I want to finish with this topic. The Ra’avad comments here on Maimonides and says the following: “One who places his fellow’s animal,” etc., “the one who struck it is liable”—that is Maimonides’ language. Rabbi Abraham said: “And all the more so if he stood in front of it.” What do you mean all the more so? The opposite. If striking it is liable, then standing in front of it should be exempt. After all, our Talmudic text says that standing in front of it is not strong enough; therefore he would be exempt, and that is why we need to interpret it as striking it. Therefore in Rabbi Moshe Isserles it says the following—he does bring this law: “One who places his fellow’s animal on top of his fellow’s standing grain, the one who places it there must pay what it damaged. And likewise if he struck it until it went to his fellow’s grain and caused damage.” You see—“until it went”—that means that the one who struck it is also liable. By the way, there is a certain stylistic change—no, fine, there isn’t, no change. Because now I suddenly think that maybe in Maimonides one could understand “he struck it until it went to his fellow’s grain”—this does not mean he struck it and struck it and brought it to his fellow’s grain. No, he struck it so hard that in the end it found itself going to his fellow’s grain. I don’t know, there is room to discuss that. In any case, that is what the Shulchan Arukh says; it brings Maimonides’ language. The gloss says: “Even if the produce was in the public domain, because this is like someone who damages directly.” How does he know that? Exactly from the inference we made before. Because if the liability here is from actionable indirect causation, this is a person causing damage, not damaging property; it is not that he acquired it. If this is a person causing damage, then why should I care whether it is tooth and foot in the public domain? That is the practical difference. If this is damaging property and I am liable because it is my property, then if my property damaged by tooth and foot in the public domain, I am exempt. But if this is damage from actionable indirect causation, then in actionable indirect causation I am liable even for tooth and foot, because this is what the person caused. Okay? And this is “like someone who damages directly”—that is the gloss’s explanation of the Shulchan Arukh’s approach. I don’t know—within the Shulchan Arukh itself there is room to discuss; the Shulchan Arukh does not bring the law of tooth and foot. What does the Shulchan Arukh itself hold? One could say that the Shulchan Arukh argues that in tooth and foot he would be exempt and sees this as damaging property. But then it is unclear why he says “until it went to his fellow’s grain and caused damage.” Look, that is Maimonides’ reasoning—that this is actionable indirect causation. In general the Shulchan Arukh usually follows Maimonides. Therefore it seems that the gloss is simply explaining the Shulchan Arukh. And afterward he says: “And specifically where he struck it and the like, but if he stood in front of it until it went there, he is exempt, because this is indirect causation in damages. The Maggid there says that this is unlike the view of the Ra’avad.” Here he is basically saying the opposite: if he struck it, they are liable; but if he stood in front of it, that is not strong enough, and therefore in that case you would not be liable. Okay? But the Ra’avad makes this a case of all the more so. So the claim—I think the claim is as follows. How are we to understand this? This is the core of the Lechem Mishneh. I won’t read it inside now, but it seems to me that this is what he means. Let’s read the language again; it’s a quotation from Maimonides: “And likewise if he struck it until it went to his fellow’s grain and caused damage.” How should we understand this? One possibility: he struck it, struck it, struck it, struck it, and took it all the way to the grain. But then of course that is more severe than merely standing in front of it. But if I say no: he struck it so hard that it went to his fellow’s grain and caused damage—it went on its own. But I struck it so hard that it ran away and went to his fellow’s grain and caused damage. Here the Ra’avad says—perhaps the Ra’avad read it this way—and therefore the Ra’avad says that in the case of merely standing in front of it you would be liable. Why? Because after all, you brought it all the way to the grain. In the case of striking it, that is indeed more active causation, but you did not bring it all the way to the grain; you only beat it. Therefore the Ra’avad says the “all the more so” goes the other way: standing in front of it makes you more liable than striking it. And this is exactly the two ways of reading this phrasing, “until it went to his fellow’s grain and caused damage.” Did he strike it all the way there, or did he strike it so hard that he caused it to go to his fellow’s grain and cause damage? Then it comes out that standing in front of it is stronger than striking it. Now, of course, one can say this only if one is talking about actionable indirect causation and not about acquisition, because with acquisition, striking it is always better than standing in front of it, no matter whether you struck it all the way to the grain or not. If you struck it, you acquired it. What difference does it make how far you brought it? This whole reversal that the Ra’avad makes shows that the Ra’avad too goes in the direction of Maimonides and the Maggid Mishneh, namely that this is a person causing damage through actionable indirect causation. Therefore he says that in the case of standing in front of it, true, you did not touch it, but in the end you were the one who brought it to the grain. That is literally “one who places his fellow’s animal onto his fellow’s standing grain,” so this is actionable indirect causation like Rashba. But in the case of striking it, we are talking about where he beat it and then it afterward went to the grain on its own—that is indirect causation. Fine? And therefore, says the Ra’avad, exempt—whereas Maimonides obligates. Or not exempt, but more exempt than standing in front of it—exempt. More exempt than standing in front of it. Okay, I’ll stop here. In the summary that appears in the file, which I send on Moodle—I put it on Moodle and also on the institute website—there will also appear a lengthy Even HaEzel, for whoever wants to go through it there. It’s not actually all that long. He tries to explain this dispute between Maimonides and the Ra’avad. Okay, in the next class we’ll already talk about the next case of indirect causation on the list, namely one who pushes his fellow’s standing grain into a fire. Fine? That’s the next case. That will be next class. Okay, thank you very much. More power to you. Good evening, goodbye, thank you.