The Receiver Chapter – Lesson 13
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🔗 Link to the original lecture
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Table of Contents
- Bending another person’s standing grain toward a fire and exemption in human court
- The tension between a person who causes damage and damaging property in earlier cases
- Indirect causation as an intermediate state and the mediating factor
- Fire as a natural category between a person who causes damage and damaging property
- The dispute between Rabbi Yohanan and Resh Lakish: his fire is because of his arrows, and his fire is because of his property
- The Talmud’s reasoning: force, tangibility, and ownership
- The conceptual possibility of ownership over something intangible and the implications for information
- Scripture and a baraita supporting Rabbi Yohanan, and the difficulty of concealed items in fire
- The Talmud’s conclusion and the practical difference: the four additional payments and Maimonides’ reading
Summary
General Overview
The text presents damage by indirect causation and fire damage as standing on the constant seam between a person who causes damage and damaging property, because in indirect causation the damage is actually carried out by a mediating factor that is not the defendant’s property, and because with fire the mode of damage resembles damaging property but lacks ordinary ownership over the fire. In that context, the text brings the topic of “his fire is because of his arrows” versus “his fire is because of his property,” the difficulty of concealed items in fire and its resolutions, and finally Maimonides’ reading, which presents fire as damaging property that receives features of “his arrows” and liabilities close to those of a person who causes damage, with implications for understanding the passage and for the connection to Rav Ashi and to bending another person’s grain toward a fire.
Bending another person’s standing grain toward a fire and exemption in human court
The text returns to the previous lecture, where two possibilities were presented in the Talmud to explain the rule of exemption in human court but liability in the heavenly court when someone bends another person’s standing grain toward a fire. One possibility sets up the case with an unusual wind, and a second possibility sets it up in the way Rav Ashi says: that he turned the grain into a concealed item under an ordinary wind, so that the one who bends it causes damage indirectly to the injured party because he exempts the one who kindled the fire from payment. The text mentions a discussion about whether the two answers disagree or do not disagree, and brings the Chazon Ish, who asks at what moment the property must be concealed in order for there to be exemption: at the moment of kindling or at the moment of damage.
The tension between a person who causes damage and damaging property in earlier cases
The text places the earlier discussions about one who stations another person’s animal in another person’s standing grain, a guardian, a robber, bandits who drove it out, and the like, as dealing with damage that looks like a case of damaging property but lacks ownership on the part of the one who would be liable. The text defines the problem this way: in order to obligate under the category of damaging property, ownership is required, but here the thing actually doing the damage is property that does not belong to the one being held liable, so the possibility arises either to obligate under the category of a person who causes damage or to say that the Torah sees him as an owner for purposes of tort liability. The text notes that various disputes appeared on this issue in those cases.
Indirect causation as an intermediate state and the mediating factor
The text defines liabilities of indirect causation as belonging to the section of a person who causes damage, because this is a case of obligating a person for damage for which his responsibility is indirect. The text describes how in most cases of indirect causation there is another factor that actually does the damage, as with another person’s animal in the case of one who breaches a fence before another person’s animal, false witnesses in the case of one who hires false witnesses to testify, and the fire in the case of one who bends another person’s grain toward a fire, whereas one who knows testimony for another and does not testify for him is an example of causation without a “proxy” that actually performs the damage. The text states that when the factor doing the damage is not the defendant’s property, the discussion falls into the seam between a person who causes damage and damaging property, and in places where they nevertheless obligate in human court, the question “on what basis?” becomes critical because of implications such as liability in unavoidable circumstances and liability for the four additional payments.
Fire as a natural category between a person who causes damage and damaging property
The text presents fire as a central context because fire is one of the four primary categories of damages in the Mishnah in tractate Bava Kamma, and so it appears to be damaging property, yet it is hard to see it as the property of the one who kindled it, because there is no ordinary ownership over it in the sense of theft, and “a candle for one is a candle for a hundred.” The text emphasizes that the mode of damage of fire is a classic case of “something of mine goes and causes damage,” but ownership is lacking, and therefore it cannot simply be placed either under a person who causes damage or under damaging property. The text explains that, like the cases of one who stations, a guardian, and a robber, if they nevertheless obligate, one possibility is to understand this as a person who causes damage through indirect causation, or as a novelty within the laws of damaging property that expands ownership or “places the thing in your domain” for purposes of liability.
The dispute between Rabbi Yohanan and Resh Lakish: his fire is because of his arrows, and his fire is because of his property
The text quotes the Talmud on page 22: Rabbi Yohanan said, “His fire is because of his arrows,” and Resh Lakish said, “His fire is because of his property.” The text compares Rabbi Yohanan’s view to an arrow, where the damage is done by the person’s force and therefore he is a person who causes damage even if an object is used, and it stresses that in that context ownership of the arrow is not central. The text presents Resh Lakish’s view as fitting the Mishnah, which counts fire as a primary category of damages, but explains that the Talmud begins specifically by probing Resh Lakish because there is a difficulty in seeing fire as “his property” due to the lack of tangibility and ownership.
The Talmud’s reasoning: force, tangibility, and ownership
The text brings Resh Lakish’s argument against Rabbi Yohanan: “His arrows go by his force, but this does not go by his force,” and explains that fire moves by its own nature or by the wind, not by the person’s force. The text brings Rabbi Yohanan’s argument against Resh Lakish: “Property has tangibility, but this has no tangibility,” and connects this to the law of “something intangible” in Maimonides, Laws of Sale, with examples such as “the smell of this apple” and “the taste of this honey.” The text suggests an understanding according to which Rabbi Yohanan’s answer is that expanding the question of “who is the owner” is possible when there is an ownable object such as an animal, but with fire there is no starting point of ownership at all, so it is impossible to turn it into “his damaging property” without emptying the concept of ownership of content.
The conceptual possibility of ownership over something intangible and the implications for information
The text brings a claim written in an article in Techumin, according to which there can be ownership over something intangible when it is not attached to something tangible, whereas Maimonides’ examples deal with something intangible attached to a tangible thing. The text presents copyright as a halakhic problem because of the category of “something intangible,” and argues that there may be Torah-level ownership over an idea that is not attached to a medium. The text cites Rabbi Chaim Palaggi in the context of the ban of Rabbenu Gershom and argues that deception is theft of information that comes to another person and is not merely “falsehood,” and from this one can learn the possibility of ownership over information. The text notes that an idea is worth money because of its uniqueness, and copying it lowers its value, so there is an aspect here not only of taking but also of causing damage.
Scripture and a baraita supporting Rabbi Yohanan, and the difficulty of concealed items in fire
The text brings Rava’s statement that Scripture and a baraita support Rabbi Yohanan, from the verse “When a fire breaks out… the one who kindled the fire shall surely pay,” and from the baraita: “Scripture opened with damage by his property and concluded with damage by his body, to teach you that his fire is because of his arrows.” The text brings Abaye’s question: according to the one who says “his fire is because of his arrows,” how can there be a case of concealed items in fire, for which the Merciful One exempted liability, since with a person who causes damage there is no exemption for concealed items. The text brings a first answer of “his arrows had already ceased,” when a fire fell into a courtyard and then a wall fell not because of the fire, and it went and ignited another courtyard, and it also brings the Talmud’s rejection that if so, then even with visible items his arrows had already ceased.
The Talmud’s conclusion and the practical difference: the four additional payments and Maimonides’ reading
The text brings the Talmud’s conclusion: according to the one who holds “because of his arrows,” he also holds “because of his property,” in a case where he should have fenced it in and did not fence it in, for there it is his ox and he did not block it. It notes that the Talmud asks, “What practical difference is there between them?” and answers: the difference is whether to obligate him for the four additional payments. The text presents that most medieval authorities understand that when his arrows have not ceased, fire is treated as a person who causes damage and therefore there is no exemption for concealed items, whereas when his arrows have ceased it is damaging property and therefore there is an exemption for concealed items and no liability for the four additional payments. The text brings Maimonides in chapter 14, law 15, who obligates one whose fire spread and injured a person for his damage, his loss of livelihood, his medical costs, his pain, and his humiliation, “as if he had damaged him with his own hands,” and writes, “for even though his fire is his property, it is like one who caused damage with his arrows.” The text presents the Maggid Mishneh’s astonishment that Maimonides does not distinguish regarding concealed items in the way the Talmudic passage does. The text argues that Maimonides reads the Talmud to mean that “his fire is because of his arrows” means that his fire is his property that has a feature of his arrows, that there is no difference between whether his arrows ceased or did not cease with regard to exemptions, and that the practical difference between Rabbi Yohanan and Resh Lakish is liability for the four additional payments. The text concludes that according to Maimonides, fire is an intermediate category between a person who causes damage and damaging property, and that this approach is going to affect the understanding of Rav Ashi and of one who bends another person’s grain toward the fire in the next lecture.
Full Transcript
[Rabbi Michael Abraham] Last time we talked about someone who bends another person’s standing grain toward a fire. We saw there two possibilities that come up in the Talmud to explain this exemption in human court but liability in the heavenly court. One possibility is that he bends it in an unusual wind and it reaches it through an unusual wind. A second possibility is that he covers it or turns it into a concealed item under an ordinary wind, which is what Rav Ashi says: that he turned it into a concealed item. And simply speaking, the moment he turns it into a concealed item, he is basically causing indirect damage to the injured party because he exempts the damager, the one who kindled the fire, from paying. We saw there the relation between the two answers—do they disagree or not disagree? I talked about the Chazon Ish, who discusses there the question at what moment the damaged property has to be concealed in order for there to be exemption: at the moment of the kindling, or at the moment of the damage. We talked about that last time. In the end, I also mentioned at the beginning of the previous lecture that, whether by chance or not by chance, the earlier discussions we had about one who stations another person’s animal in another person’s grain, a guardian, a robber, and all those situations, or like squash and standing grain among standing grain, and all those cases, are basically talking about damage that we are debating whether to place under the heading of a person who causes damage or under the heading of damaging property. And the main problem was the question: who is the owner of that property that caused the damage? The guardian is not the owner of the property deposited with him. About the robber, we talked about rights of acquisition through robbery—how far such rights go at that stage after despair. And when one stations another person’s animal in another person’s grain, of course it is another person’s animal, meaning he is not the owner. On the other hand, the mode of damage is not the mode of a person who causes damage; it is a mode where, in the end, what caused the damage was the property. So we have here a whole set of situations in which the mode of damage looks like damaging property, but in order to obligate him you need him to be the owner of the property, and therefore you really can’t obligate him under the category of damaging property—unless maybe under the category of a person who causes damage. So maybe the Torah sees him as an owner for purposes of obligating him as damaging property, or maybe we see him as a person who causes damage. There were various disputes about this in all those cases. Now, what happens with liabilities for indirect causation—I’m going back—this was really the discussion there around the first case of one who breaches a fence before another person’s animal, the first of Rabbi Yehoshua’s four cases, which are all liabilities of indirect causation. Let’s try for a moment to think about liabilities of indirect causation in general, not just that specific case, but any case at all. Liabilities of indirect causation are, in their essence, always in the middle, really. Because on the one hand, damaging property is in its essence a form of indirect causation. Meaning, with damaging property there is no reason to exempt it for indirect causation, because when property causes damage, the owner’s fault is always indirect fault. He left the door open, and then the property went out and caused damage. So when we talk about liability for indirect causation, we are really talking about the section of a person who causes damage. Meaning, we are talking about obligating a person for some damage for which he is responsible only indirectly, only by indirect causation, and not directly. Now the question is: what counts as indirectly? Indirectly generally means through some intermediary. That is, somehow I caused something else to do the damage. If I did it with my own hands, that’s not indirect causation. So what actually did the damage in the end? Something else. And that something else—and of course this changes a bit from case to case—for example, one who knows testimony for another and does not testify for him, the fourth case among the three in the series, is not like that. There there is no mediation. I don’t testify for someone, I caused him damage, but there is no thing that was my proxy, my extended hand, that created the damage. There is some causation there that is explicitly causation by a person, just indirect causation. But if someone hires false witnesses to testify, then the false witnesses are really what caused the damage; I only hired them. One who kindles a fire, one who bends another person’s standing grain toward a fire. There too, the fire did the damage; I only caused that thing to happen. One who breaches a fence before another person’s animal—the other person’s animal did the damage; I only breached the fence. So in most cases of indirect causation, maybe except for the final case of one who knows testimony and doesn’t testify, these are cases where there is some factor that does the damage, and I only arranged things so that it would happen. Now what is that factor? Seemingly, that factor is really supposed to be damaging property. So if it’s my property, then of course the question doesn’t arise, because when I opened the door or didn’t lock the door and my property went out and caused damage, that isn’t defined as indirect causation. That’s damaging property; that’s the definition of damaging property. When we talk about indirect causation, what that means is that what ultimately produces the damage is not my property. False witnesses. I mentioned fire. But yes, one who breaches a fence before another person’s animal—then it’s the other person’s animal. You suddenly see that all these cases of indirect causation—it’s not by accident that the one who breaches a fence before another person’s animal led us into the discussion of one who stations, and bandits who drove it out, and various things of that sort. That’s essential. The whole concept of indirect causation really falls almost entirely on the seam between a person who causes damage and damaging property. Because on the one hand, what did the damage was some kind of property, something, some other factor—not a person who did the damage, or another person in the case of hiring false witnesses to testify, where it’s another person—but in principle it’s another kind of thing, something else, that did the damage. And the one we want to sue is a person who arranged the situation so that this would happen. And by definition, it has to be that the thing that did the damage, that property, is not the property of the person we are suing. Because if it were his property, then we would sue him under the ordinary law of damaging property. So it’s not his property. So you suddenly see that the whole discussion we’ve been having over the last few lectures is not accidental. Essentially, in damage by indirect causation, this dilemma always really comes up—or almost always, or at least in a natural way. Is this a person who causes damage? Is it damaging property? How exactly should it be defined? In all the situations where he is exempt in human court but liable in the heavenly court, that matters less, because what difference does it make—damaging property or a person who causes damage? It’s a transgression, but there aren’t the legal questions here of how exactly you obligate him and for what you obligate him, and all the exemptions of damaging property versus a person who causes damage. But there are such situations where they nevertheless obligate even in human court. And if they obligate him, the question immediately arises: on what basis? As a person who causes damage? As damaging property? And that has all sorts of implications. A person who causes damage is liable even in unavoidable circumstances, liable for the four additional payments if you injure another person, and so on. Therefore this question that comes up, this wavering between a person who causes damage and damaging property, which came up for us at the beginning of our discussion of the topic of damage by indirect causation, is not accidental. Damage by indirect causation naturally brings to the surface this tension between a person who causes damage and damaging property. Now I’m coming to fire, because this is a great context for understanding the matter of fire. When we talk about one who bends another person’s standing grain toward a fire, we are basically dealing with fire damage. Now in general, fire damage, even without somebody bending another person’s grain, fire itself is basically that kind of thing. Because on the one hand, when fire goes and causes damage, that’s damaging property. Also, at the beginning of the Mishnah in tractate Bava Kamma, fire is one of the four primary categories of damages. Okay? So that’s damaging property. On the other hand, fire is not—it’s hard to relate to it as property belonging to its owner or to the one who kindled it. That is, it’s not something where, if someone took my fire, he would be liable for theft. Nobody says such a thing. You can take whatever fire you want—one candle for one, a candle for a hundred. That means there’s nothing here you can talk about as my property. So on the one hand, this is not damage done by a person; it’s not a person who causes damage. On the other hand, it’s not really damaging property either. Why? Because ownership is missing. Notice: in terms of the type of damage, this is absolutely damage of the kind we call damaging property. A classic case, yes? Something of mine goes and causes damage. What is missing in order to place it simply into the category of damaging property? Ownership. Over fire, you have no ownership. It’s not something tangible. You have no ownership over it. It’s not my property. And therefore you can’t put it, on the one hand, under a person who causes damage, and on the other hand under damaging property. Now I remind you that in the earlier examples—one who stations another person’s animal in another person’s grain, a robber, a guardian, all the things we talked about before—it was exactly the same. The damage was damage done in a way that belongs to damaging property, not a person who causes damage, but the property that caused the damage was not my property. Something was lacking in ownership. And because of that, if you still obligate, then this has to be a person who causes damage through indirect causation, or some novelty in the laws of damaging property in which we give up the ownership requirement in order to obligate, or we place the thing in your domain so that you become liable for its damages. Okay? That’s the tension there. And then all of a sudden we discover that fire, in the most natural way, is really located there. Even before getting to one who bends another person’s grain. I’m not yet getting into the one who bends it. The very damage of fire—fire damage itself—really belongs to this whole section. And on top of that we now have to examine the status of someone who bends another person’s grain toward the fire. Here there are already two factors involved: the one who kindled the fire and the one who bent the grain. But both of them are really in a situation like that, where they are… it’s between a person who causes damage and damaging property. One because he kindled a fire, and damage by fire itself is of that sort, and the other because he bent another person’s grain and therefore has only responsibility—indirect responsibility. And therefore, even with regard to fire, I would expect, just ordinary fire damage now—I’m leaving aside this whole topic of one who bends another person’s grain toward the fire. We’ll return to Rav Ashi later, but first let’s talk about ordinary fire damage. Okay? We’ll return to Rav Ashi again, but first let’s talk about an ordinary case of one who damages through fire. Okay? I’m saying that even an ordinary person who causes damage through fire really belongs to our topic, in the sense that there too there is some category that lies between a person who causes damage and damaging property, because the mode of damage is like damaging property, but ownership is missing. You can’t obligate him under the category of damaging property in the simple sense, because ownership is missing. Of course, in the background—unlike other cases—here we have verses. “When a fire breaks out and finds thorns,” yes? “The one who kindled the fire shall surely pay.” And the Torah itself says that we are liable for fire damages. So here the question is not whether we are liable, because we are liable for fire damages. Rather, the question is how to relate to that liability: does it come from the section of damaging property, from the section of a person who causes damage, and so on. We’ll see that beyond the fact that this is a discussion that also continues the whole line of the last few lectures, all those damages that are between a person who causes damage and damaging property, in the end it also projects onto the question of how I understand Rav Ashi’s statement. Yes? The one who here said—yes, the first one—that someone causes damage through fire, there too there will be an implication for how I understand fire damage in relation to this whole topic. So this whole introduction is, first, to put fire into the context of the line of the last few lectures, and second, to explain why I’m now going to deal with fire damage in general. I’m leaving Rav Ashi, leaving the one who bends another person’s grain, and I want to devote some time to fire damage. We’ll of course return to our topic later and see why this is relevant. Okay. The Talmud—I’m sharing the file—the Talmud in chapter two, on page 22, this is the famous passage of “his fire is because of his arrows.” So the Talmud brings a dispute there: it was stated, Rabbi Yohanan said: his fire is because of his arrows, and Resh Lakish said: his fire is because of his property. So Rabbi Yohanan sees the damages of fire—and again, I’m talking about ordinary fire damage, plain and simple, someone kindled a fire, it went out and burned something, okay? So Rabbi… Rabbi Yohanan says this is like a person who shoots an arrow. A person who essentially sends fire that burns another person’s property is like a person who shoots an arrow at another person’s property. In other words, when I… here’s an example maybe in the earlier context: when I shoot an arrow, and the arrow flies and breaks, I don’t know, some vessel of my fellow. Am I a person who causes damage or damaging property? The arrow is my property—sorry, the arrow is my property. Am I a person who causes damage, or damaging property? So obviously it’s a person who causes damage, right? When I shoot an arrow, it’s a person who causes damage. Why? Because the damage happens through my force. Just as if I take a hammer and use it to break some vessel, true, I’m using the hammer, but nobody would say that this is damaging property. I’m causing damage through my own force; I’m just doing it by using some object, some instrument. And therefore there it really doesn’t matter whether it is my property or not. And we talked about that in the case of one who stations another person’s animal in another person’s grain, where there is room to hesitate. Rashba and Tosafot—the dispute between Rashba and Tosafot on the question whether I really see this like someone taking a hammer. Then why should I care who owns the hammer? It’s a person who causes damage using a hammer. That’s basically how Rashba saw it: as a person who causes damage, in the case of one who stations the animal. Tosafot apparently sees it not as a person who causes damage in the simple sense, because after all, when the animal eats… it isn’t eating through my force. I put it in the grain, but the animal decided to eat, and it eats on its own. This isn’t done through my force. Therefore in such a case, it still belongs to the section of damaging property and not a person who causes damage, except that it’s more direct, and therefore I don’t have to be the owner in order to be liable for the damages caused by that animal. Now here Rabbi Yohanan says that with regard to an arrow, it’s obvious that this is a person who causes damage. An arrow is far more direct than stationing another person’s animal in another person’s grain. With regard to an arrow, even Tosafot would agree that this is a person who causes damage. With regard to one who stations another person’s animal in another person’s grain, there is a dispute among the medieval authorities, but with regard to an arrow it is obvious that this is a person who causes damage, because I’m causing damage through my force. The fact that I use something else makes no difference. Resh Lakish said to him: his fire is because of his property. Now on the face of it, when we look at this, we already know that the Mishnah at the beginning of tractate Bava Kamma brings fire as one of the primary categories of damage by property. Meaning, fire is damaging property. Before I get into the question of why and what the arguments are in each direction, first of all, categorically, the Mishnah brings fire as one of the four primary categories of damages of damaging property. Yes? Ox, pit, grazing, and burning. Well, in practice there too grazing may be a person, depending on how you explain those four categories. That’s a dispute between Rav and Shmuel at the beginning of chapter one. But in the accepted interpretation, these are four primary categories of damages of damaging property. So on the one hand, Resh Lakish is apparently right: his fire is because of his property. More than that, fire really is also something that goes and causes damage on its own. Meaning, this is not damage that I do by using a hammer or an arrow or something like that. And therefore, apparently, the more straightforward side is Resh Lakish: his fire is because of his property. Rabbi Yohanan, who innovates that his fire is because of his arrows, really needs explanation. Now what’s interesting here is that the Talmud, when it goes on to clarify the dispute, starts with Resh Lakish. And it says: and Resh Lakish, what is the reason he did not say like Rabbi Yohanan? Okay? Meaning, the Talmud thinks that the one who first needs to explain his position is specifically Resh Lakish, not Rabbi Yohanan. As if Rabbi Yohanan is the straightforward one. And Resh Lakish has to explain to me, where exactly did “his fire is because of his property” come from? How did you reach that idea? That somehow is the position that seems simple. And why? Presumably—and of course this is a suggestion—but in light of the continuation of the Talmud, maybe this gets strengthened—the Talmud apparently understands that fire cannot be a case in the section of damaging property. In what sense is fire my property? Does it belong to me? It’s not property in the ordinary sense. So how can you obligate a person for fire damage under the law of damage caused by his property? Therefore the position that requires justification or explanation, in the eyes of the Talmud, is specifically the position of Resh Lakish. Then the Talmud asks: and Resh Lakish, what is the reason he did not say like Rabbi Yohanan? I’ll keep reading. He could say to you: his arrows go by his force, but this does not go by his force. What does that mean? Resh Lakish explains why he cannot establish things like Rabbi Yohanan, that fire is a person who causes damage. Even though, again, the simple view is that fire cannot be damaging property, right? That’s the Talmud’s simple view: it can’t be damaging property. So Resh Lakish says: right, but it also can’t be a person who causes damage. Notice, he doesn’t explain why fire is damaging property. He explains why fire cannot be a person who causes damage. Because his arrows go by his force, but this does not go by his force. Meaning, when you shoot an arrow, the flight of the arrow is due to the force of the person. When fire moves, it’s because of the nature of fire, or the ordinary wind that carries it, or something like that. It’s not that the force of the person is embedded in the fire and carries it forward. So that’s a good explanation of why you can’t compare fire to an arrow. But that still doesn’t really answer for me why one should say that fire is damaging property. Meaning, you want to explain to me why fire is not a person who causes damage—I understand—but in what sense is fire damaging property? And I’ll remind you again that, apparently, the Talmud’s starting point is that fire is a person who causes damage. Okay? Fire in the simple sense is a person who causes damage. And therefore the Talmud says: you, Resh Lakish, have to explain to me why not. After he explained why not, I understand—but okay, then it’s not a person who causes damage, but it’s also not damaging property, so it should be totally exempt in the case of fire. Well, total exemption is not an option, because there is a verse. The verse says, “When a fire breaks out”—I obligate the one who kindled it. Therefore, the negative explanation of why fire is not a person who causes damage is enough for me to say: okay, then what remains is that it is damaging property. Because the Torah itself obligates for fire damage, okay? And still, of course, behind that, this needs explanation. I assume the explanation will be of the same kind we talked about in all the previous lectures: that the Torah sees the fire as my property for purposes of liability for its damages. Because if I kindled the fire—like one who stations another person’s animal in another person’s grain—in the end, I kindled the fire. True, the fire is not my property, but when I stationed my fellow’s animal in your grain, the animal I stationed was also not my property; it was someone else’s property. And that does not prevent the Talmud from saying that I am liable—according to Tosafot—from the side of damaging property. So let’s say according to Tosafot, okay? From the side of damaging property. So what do we see? That there are situations where even though the thing is not my property, if the mode of damage is a mode of damaging property, then the Torah sees me as the owner for purposes of tort liability. Even though I’m not truly the owner: if someone steals the fire from me, he hasn’t transgressed theft. But for purposes of tort liability, the Torah expands the definition of ownership further. There are things that the Torah will see me as owning only for purposes of obligating me in liability for their damages. And that’s really what Resh Lakish is saying. So Resh Lakish says: why should I care that the fire is not my property? But fire also isn’t a person who causes damage. And the Torah obligates. Apparently there is here too some expansion of the concept of ownership for purposes of tort liability, just as we saw in the case of one who stations the animal.
[Speaker B] But if he hadn’t rejected Rabbi Yohanan, the claim that this is a person who causes damage, then he would have no source at all to say that the Torah says this is his property. Because you could always make the other claim. No—
[Rabbi Michael Abraham] I understand. What? I didn’t understand the question.
[Speaker B] I mean, in order to state Resh Lakish’s position, you have to say that this is not through his force. You have to reject the other possibility, because otherwise I have no special scriptural decree saying that it counts as his property.
[Rabbi Michael Abraham] Here—so that’s why I said, clearly the Talmud starts from the assumption that Rabbi Yohanan is right. Now Resh Lakish comes and explains why Rabbi Yohanan isn’t right, but he doesn’t explain why he himself is right. After all, the Talmud assumed from the outset that Resh Lakish’s position is puzzling. So Resh Lakish is supposed to give me explanations. But that’s strange, because if that’s what you assume, then it’s not enough to tell me why you disagree with Rabbi Yohanan; you also have to defend your own thesis, because in the eyes of the Talmud it’s an implausible thesis. But the Talmud doesn’t demand that of him. It’s enough that he explained why he isn’t Rabbi Yohanan. So of course, in the background there are the verses that obligate for fire damage, and therefore clearly this is either a person who causes damage or damaging property. Once we ruled out the possibility that it’s a person who causes damage, we’re left with it being damaging property. And it is certainly possible, by the way, that this is a source—at least according to Resh Lakish—for the law of one who stations the animal, where we see that there are situations in which a person is not an owner of something in the ordinary legal sense, but for tort purposes we see him as its owner. For purposes of tort liability. In other words, the other way around: regarding one who stations the animal, there is no verse. Regarding fire, there is a verse. It may be that the verse about fire is the source for this idea of expanding ownership for purposes of tort liability, okay? Then the Talmud says: and Rabbi Yohanan, what is the reason he did not say like Resh Lakish? Now the Talmud remembers that Rabbi Yohanan also owes us some explanation. How—what happened now? After Resh Lakish tells us that this is not similar to a person who causes damage, the Talmud says: wait a second, so really, why does Rabbi Yohanan still take it in that direction? So Rabbi Yohanan says: he could say to you, property has tangibility, but this has no tangibility. Now here again I’m putting this on the same axis as all the previous lectures, because they are really the obvious background. That’s one of the reasons I got into fire damage here—I want to place fire damage exactly in this context of all those damagers that stand between property and a person who causes damage. Rabbi Yohanan is basically saying: if Resh Lakish is really right, notice the graded movement of the Talmud, in the end we arrived at the conclusion that Resh Lakish is really saying that the starting point should have been a person who causes damage—that’s the starting point. Then the Talmud innovates: no, this isn’t a person who causes damage, because it doesn’t go through his force; it’s not like an arrow. Okay, but then it’s also not damaging property, right? So if that’s the case, then Rabbi Yohanan would still need no explanation, because Rabbi Yohanan could say: okay, but there is a verse that says we are liable for fire damage. Damaging property can’t be right either, correct? So I’m left with a person who causes damage. But once I was introduced to this point in Resh Lakish, that a person can be liable for damage caused by property even though it isn’t his property in the ordinary sense—there is an expansion, like in the case of one who stations the animal—now the Talmud says: fine, now you, Rabbi Yohanan, have to explain yourself. So if it is possible to obligate a person even when the thing that caused the damage is not his property, then with fire why don’t you choose that option? Then they go back and ask Rabbi Yohanan himself: so why do you say this is because of his arrows, as a person who causes damage? You also agree, say, to the law of one who stations the animal. Again, I’m continuing to read this according to Tosafot, yes, in the case of one who stations the animal. Okay, you also agree that there are sometimes situations where, because the person is so blameworthy, even though it is not his property, we see him as the owner for purposes of tort liability. On the other hand, it’s still not an action—so should I say a person who causes damage? No. There are situations where the mode of action is not the mode of a person who causes damage; something else caused the damage, but you are responsible for it, and therefore we see you as the owner. After the Talmud said that fire is also like that—that fire is not an action of a person who causes damage, because it doesn’t go by his force, as Resh Lakish explained—if so, the scale now tips back in Resh Lakish’s direction. Now Resh Lakish has a possible—and really natural—way out. There is an expansion of the concept of ownership for purposes of tort liability. So if this really does not resemble a person who causes damage on the one hand, and on the other hand we know that the Torah sometimes expanded tort liability even to places where I am not the owner of the thing that caused the damage, then the natural conclusion now is Resh Lakish. So let’s obligate in the case of fire under the law of his property that caused damage. Why doesn’t Rabbi Yohanan say like Resh Lakish? That’s the seesaw underlying the give-and-take of the Talmud. The simple position is Rabbi Yohanan. After Resh Lakish explains himself, we return to Resh Lakish. And now Rabbi Yohanan says, no, no—but this can’t be Resh Lakish. Why? Because property has tangibility, but this has no tangibility. Okay? What does that mean? Look, Maimonides in chapter 22 of the Laws of Sale writes as follows, law 13: a person can transfer ownership neither by sale nor by gift except in something that has substance. But something intangible cannot be acquired. Yes, something intangible cannot be acquired. How so? Law 14, how so? He gives examples. A person cannot transfer ownership of the smell of this apple, or the taste of this honey, or the appearance of this crystal. Why does he always add “this”? Do you know why? Because I think people might think that when I want to transfer the taste of honey, I’m not talking about a concrete honey but the idea itself of the taste of honey, which would count as something intangible. Maimonides says: that’s obvious—that’s not what I’m talking about. You can’t transfer ideas. I’m talking about the taste of this honey, meaning you have a concrete honey and it has a taste, or an apple has its smell. Now that is something concrete, just not tangible. And Maimonides wants to say that when he speaks about something intangible, he doesn’t mean something non-concrete, the transfer of an idea; he means something concrete but non-material. Exactly like in our Talmudic passage: it has no tangibility. Yes, that’s the fire. Okay? And he says, and so too anything similar to this. Therefore, one who transfers to his fellow the eating of the fruits of this date palm, or residence in this house, has not transferred anything until he transfers to him the body of the house to live in and the body of the tree to eat its fruits, as will be explained. So this is the law of something intangible. And over something intangible, simply speaking, there is no ownership. And that is what Rabbi Yohanan answers Resh Lakish in the Talmud. He says: I cannot establish this as damaging property, because fire is something intangible—it has no tangibility, as the Talmud says. And if it has no tangibility, then there is no ownership over it. If there is no ownership over it, how can it be his property that caused damage? Now here we have to understand, in light of what I explained before, what exactly Rabbi Yohanan is answering. After all, Resh Lakish also agrees that there is no ownership over fire. It’s just that Resh Lakish innovated—and I said this is really the whole progression of the Talmud—that even if there is no ownership over the thing, sometimes the Torah expands the concept of ownership in order to impose tort liability on me. And it is only because of that innovation that we come and ask Rabbi Yohanan: then why don’t you choose the option that fire is his property that caused damage? So if that’s the case, then it’s not clear what he is answering, because what he answered was the starting point. Obviously fire can’t be my property, because it has no tangibility. Fine. That’s exactly why from the beginning we thought that you, Rabbi Yohanan, were right. That’s why we asked Resh Lakish for explanations. But after Resh Lakish explained his position so nicely, now I swing the pendulum back to you. Now I ask you: tell me, why don’t you accept Resh Lakish’s thesis? After all, you also agree that this is not a person who causes damage; it doesn’t go through his force. On the other hand, Resh Lakish shows you that there is a very reasonable interpretive option: sometimes we expand the concept of ownership for purposes of tort liability even though you are not the owner. And therefore, with fire, he is willing to see the fire as your property that caused damage, and not as a person who causes damage. And now I come and ask Rabbi Yohanan: so why don’t you accept that? And what does he answer? He answers something beside the point. He says no, because with fire there is no tangibility, so there is no ownership. Thank you very much—that I already knew from the beginning. That’s where I started. I know. I only want to say after all that maybe there is an expansion of the concept of ownership for purposes of tort liability. I understand that there is no ownership over fire; nobody says there is. Resh Lakish also doesn’t dispute that. Resh Lakish just says: given the two facts that on the one hand this does not resemble a person who causes damage, because it isn’t his force, and on the other hand there is no ownership over it, and on a third hand there are expansions of ownership for purposes of the laws of damages, for purposes of tort liability—if you put those three assumptions together, the natural outcome is that fire is damaging property. And now I come and ask Rabbi Yohanan: so why don’t you accept that? And what does he answer? Because there cannot be ownership over fire. Thank you very much—that I knew from the outset. That was the basis of the question. So what is he answering? And if I’m right that this is what lies behind all the give-and-take up to this point, then it’s not clear what Rabbi Yohanan is answering here. Seemingly it looks as though maybe one could explain—just a second—that only here was the point introduced that fire cannot be his property. As if before that we didn’t know. But if before that we didn’t know, then why was Resh Lakish specifically the one required to explain himself first and not Rabbi Yohanan? Then the simplest thing would be to say that fire is damaging property. That’s why I said before that this isn’t plausible. I think the Talmud knew from the outset that fire cannot be property. And if that’s so, then it isn’t clear what Rabbi Yohanan is answering here. Yes, what is it, Doron, did you want to say something?
[Speaker C] Maybe Rabbi Yohanan’s answer is that expanding the concept of ownership is relevant when that concept exists and then you say: I’m expanding it. But here it doesn’t even get started. It doesn’t even begin—there is no ownership here at all. There is nothing tangible here for ownership to apply to. Expanding a concept means: true, I’m not the owner right now, yes? But since I have responsibility for it, we expand the concept. But here it’s something else altogether—it doesn’t even begin.
[Rabbi Michael Abraham] Right, I think that’s what the Talmud says here: that Rabbi Yohanan is basically answering that in contexts—contexts like, say, someone places his fellow’s animal onto his fellow’s standing grain—there we’re dealing with an animal, and ownership fundamentally does apply to it. It’s just that someone else is the owner, and I take the animal and place it on my fellow’s grain. So there they tell me: look, for this purpose you are considered the owner. They didn’t innovate the concept of ownership here; they innovated who the owner is. Fine—but not the concept of ownership itself. But with fire—fire, essentially, has no ownership over it. It’s not because someone else is the owner and not me; rather, fire in general is not on anyone’s list of property. Ownership simply does not apply to it. In that situation, Rabbi Yohanan says—Reish Lakish says: even in that situation, I still view him as the owner of property that caused damage. Rabbi Yohanan—this is what he answers—I’m prepared to accept it in the case of placing the animal there, because that’s an animal. An animal can have ownership: a guardian, a thief, whoever it may be. But fire has no substance. It’s not because someone else is the owner; ownership doesn’t apply to it at all. So in that situation, Rabbi Yohanan says: you, Reish Lakish, are saying that even in such a case—Rabbi Yohanan says I’m not willing to see it that way, because otherwise you’ve completely emptied out the concept of damaging property, which requires ownership and all those things. Then really none of that is needed. Whoever is at fault bears the consequences, and that’s it. You’ve completely drained of content the distinction between one’s property causing damage and a person causing damage. And that’s why Rabbi Yohanan says it can’t be.
Meaning, fire cannot fit into Reish Lakish’s mechanism of expanding the concept of ownership for purposes of tort liability, because this is not an expansion of the concept of ownership—it is creating a new concept of ownership out of nothing. Expanding the concept of ownership means expanding—not expanding the concept of ownership, but expanding a person’s ownership, not expanding the concept itself. Rather, the ownership is now mine and not yours for purposes of tort liability. Rabbi Yohanan says: that, I accept. But something to which ownership simply does not apply—not that you’re not the owner; ownership just doesn’t apply at all—if you accept even that as damaging property, then forget it, then it doesn’t need to be yours at all. Why are you introducing the issue of ownership here? It’s totally irrelevant. Okay, I think that’s what Rabbi Yohanan is innovating here.
So much so that now we really need to go back and ask ourselves what Reish Lakish answers him. The Talmud stopped the discussion here. But if this is really so, then once Reish Lakish is prepared to see even fire as property, at least for purposes of tort liability, then in what sense does something need to be property at all? Is there any trace left of that requirement? This is no longer just an expansion—no longer an expansion of the concept of ownership for tort liability. It basically means that whoever is at fault is liable, period. You don’t need him to be an owner. It’s just semantics to say that everywhere I want to obligate someone, I view him as the owner. But why go through this business of “viewing him as the owner”? Just say he doesn’t need to be an owner at all. Whoever is responsible—whoever it is appropriate to impose liability on—he will be liable, and that’s all. There is no requirement that he be an owner. If whenever you want you say, ah, here we don’t need it—then really, forget it, you don’t need the concept of ownership.
So Reish Lakish, once he also sees fire as his property that caused damage, the question really arises: what remains of the requirement that it also be his property? Nothing remains. Basically what Reish Lakish is saying is: wherever you are at fault, you will be liable. That’s all—not damaging property and nothing of the sort. And as I said also regarding the versions in the opening Mishnah of Bava Kamma, the Rif’s version is that their common denominator is “your property, and its safeguarding is upon you.” But the version we have leaves out “your property”: the common denominator is “its safeguarding is upon you.” And maybe according to Reish Lakish that’s what remains. According to Reish Lakish, what remains is only “its safeguarding is upon you”; it doesn’t need to be “your property.” In other words, “its safeguarding is upon you” means that it is proper to place the liability on you. When you’re the one at fault, when you are the natural party to whom the claim should be directed, then we direct the claim to you. You don’t need to be an owner, and there’s no need to invent that the Torah views you as an owner. Don’t invent the fiction of ownership, and then you won’t need excuses that the Torah sees you as the owner. You don’t need to be an owner; you need to be at fault, you need to be the one on whom it is fitting to impose liability.
So with Reish Lakish this really is a question: how can one understand such a thing? Here I’ll just note briefly, because there’s a lot to elaborate on. I once wrote an article on copyright. Copyright is a very problematic concept in the halakhic context, and the main problem is this Maimonides we just read. Because copyright on an idea, for example—a patent or something like that—is something that has no substance. You can’t touch it; it has no substance, right? It has no substance, so there can be no ownership over it. So the question is how to define the concept of copyright in Jewish law. Various things have been written about it: that it’s rabbinic, or the law of the kingdom is law, or from the laws of benefit, or all kinds of things of that sort. None of them really succeeds in grounding a concept of copyright.
In the article—I published it in Techumin—I argued there that there can be ownership over something that has no substance. The examples the Talmud gives for situations where you cannot be an owner because the thing has no substance are all, at least as far as I saw, always examples where the thing with no substance is attached to something that does have substance. For example, the airspace of a courtyard, the smell of an apple, the appearance of honey, the taste of honey, right? Or the appearance of crystal or something like that. There is crystal, and then there is the appearance of the crystal or the color of the crystal. There is the honey, and there is the taste of the honey. There is a courtyard; there is the airspace of the courtyard. Okay? So what are we really saying? You can’t be an owner of the thing that has no substance. Why? Because the ownership of the thing with no substance belongs to whoever owns its base, the thing that does have substance. Let’s say ownership of the air belongs to the owner of the land, because the air is attached to, secondary to, the land, and the land has substance. The land has an owner. Or with the apple: you can’t be the owner of the smell of the apple. Why? Because there is ownership over the apple. Whoever owns the apple also owns the smell of the apple, or the taste of the honey, and so on. All the examples the Talmud gives of something without substance, and that Maimonides gives of something without substance, are always things without substance that are attached to something with substance. And you can’t be the owner of… sorry?
[Speaker B] You can’t think of another example, at least certainly in Maimonides’ time. Today a little less so, but of something else. It’s not that he had no ability to present something else.
[Rabbi Michael Abraham] No, fine, but still the question is—you're saying it could be that Maimonides and the Talmud also mean examples like those, where it’s only non-substantial and not attached to something else. But it could also be that they don’t. You have no proof. It’s true that in their time maybe—although I think patents and copyright existed then too, it was just less common.
[Speaker B] No, but patents and copyright actually do meet this criterion, by the way. Why? In the normal case, I wrote a text on parchment, so the parchment is mine and it’s attached to the parchment—
[Rabbi Michael Abraham] That’s not copyright; that’s just theft if you took the parchment. I’m talking about the idea. The idea is not attached to the parchment. The idea exists independently. So what if it’s written on the parchment? The taste of the honey doesn’t exist anywhere except in that honey, which is why I said Maimonides says “this” everywhere. The taste of this apple or of this honey is attached to this honey and this apple, period. The idea is not attached to this parchment. The idea has an independent existence. So what if I happened to put it on this parchment now? I could also have written it on ten other parchments. In that sense, an idea really is the best example of a thing without substance that is not attached to something else that has substance. It stands on its own.
And by the way, this did exist in the time of the Talmud—people had ideas then too. Of course it was much less common, because today you have disks and software and works that are heard through various digital media and the like, so it’s much more practical. It comes up much more. But the very point that you have a right to an idea—the Talmud itself addresses that, regarding the ability to compound the incense. There was a family there that knew how to prepare the incense. There were all kinds of special abilities or crafts that people had, and we wanted, at least, for them to have proprietary rights over those things. And the question is whether the Talmud is speaking about that too, or whether it is not. The examples the Talmud gives are all not of that kind. You can say that those were simply the examples that came up, but not specifically. But it could be that it is specifically so.
And the claim I made there in the article was that I think when the thing without substance is not attached to something that has substance, there can be ownership over it, because even in a thing without substance there is ownership. It’s just that when it is attached to something with substance, then ownership of the thing with substance counts as ownership over the whole thing, and therefore you cannot be its owner separately. Not that you can’t be an owner at all; rather, if there is a thing without substance that is not attached to something else, you can own it.
[Speaker B] And therefore the claim is that there is Torah-level ownership of copyright.
[Rabbi Michael Abraham] No need for models or rabbinic enactments or anything—copyright has Torah-level ownership.
[Speaker B] Whoever takes it is a thief.
[Rabbi Michael Abraham] It’s theft.
[Speaker B] You can’t betroth with it? What?
[Rabbi Michael Abraham] According to that approach, can’t you betroth with it? It could be, it could be; I don’t know. Look, the point is that this is very delicate. Because clearly, if let’s say I transfer to a woman this ability, clearly you can betroth with that, because it’s worth money. After all, you can also betroth with something of monetary value. If someone wants me to teach him a certain craft, with that you can certainly betroth a woman—like dancing before her, right? You can betroth a woman by dancing for her. Since seeing me dance—I don’t know, there are crazy people who would pay a perutah for that, fine? It has monetary value. So I gave her something of monetary value. The question is whether I’m betrothing her with the act of dancing itself or with the monetary value—how much it’s worth to watch the dance. It’s like payment for the benefit of remitting a loan or betrothing through a loan, the Talmud in Kiddushin 6a. So here it’s very delicate how to define it. But on the conceptual level, it could be that one can in fact betroth with it in its pure form as well, with the idea itself.
Now why am I saying all this here? Because with Reish Lakish it could be that what Reish Lakish is really saying is: true, fire has no substance, okay? Sorry—Rabbi Yohanan, after all, says that fire has no substance. So what does Reish Lakish answer? I asked that. Reish Lakish will say: true, fire has no substance, but it is not attached to something else. You could say it’s attached to the burning material, to the burning wood, but I don’t think that’s correct. It moves onward as well; it doesn’t belong to some specific burning object. It passes from object to object, it moves with the wind. Fire really does have a kind of independent existence; it is not attached to something else that has substance. In that situation, Reish Lakish will say that there is ownership. This is not an expansion of the concept of ownership—it is ownership. One can also own such a thing.
By the way, I brought proofs from the Talmud there, in that article. There’s also—since we’re already talking about it—an interesting remark. Rabbi Chaim Palaggi writes in a responsum: after all, regarding the ban of Rabbenu Gershom, he writes there that basically Rabbenu Gershom did not innovate the prohibition, say, against opening someone else’s letter. He didn’t innovate the prohibition; he only placed a ban on it. But there are Torah prohibitions regardless, which existed even before Rabbenu Gershom. One of them—he brings several prohibitions there—one of them is deception. So Rabbi Kubo once asked me about this. He invited me to give some workshop to judges and legal professionals, and they prepared sources before that weekend where we studied them together. So he says to me: listen, honestly this Rabbi Chaim Palaggi is a wondrous midrash. What’s the connection? Deception belongs to the family of falsehood. What does this have to do with deception? That was the first time the penny dropped for me, when I prepared that seminar. So I told him that in my opinion deception means exactly what it says: you steal information. When you open the letter, you steal information that does not belong to you; that is called deception.
We are used to thinking that deception means lying, but that’s not correct. If you ask me, for example, how old I am, I’ll tell you twelve. Fine? And you won’t be able to tell that it’s not true. Today I think I’m flattering you a bit too much. So no. You won’t be able to see that it’s not true. Did I deceive you? Absolutely not. I lied. I didn’t deceive you. What’s the difference? Deception means stealing from you information that is due to you. But you’re not entitled to know how old I am; I can choose not to tell you, I don’t want to reveal it. That’s my right. I don’t have to provide you with that information.
Deception—and look, what a passage in Hullin, a very interesting passage, and I showed it from the passage itself—deception is not lying. Deception is stealing information that is due to you, withholding from you or hiding from you information that fundamentally you are entitled to know. If I sell you a car without an engine—there was an engine? Like in the old skit, right? I sell you a car without an engine. Fine? But I sell it to you at a fair price, meaning there’s no overcharging here. So you just think you got a bargain, a car dirt cheap, and then you discover it has no engine. Then I violated deception. Why? Because if you’re buying, you are entitled to know what you’re buying. And when I conceal that information from you, I took from you information that was due to you. That’s why it’s called deception and not just lying.
Now, okay, one could elaborate on this, but what I want to argue is that when you open a letter you are basically stealing information—stealing someone’s information. And this has nothing to do with falsehood at all. Falsehood is only one example. A lie, in a place where the information is due to you, is deception—but it’s not that deception belongs to falsehood at all. Deception is a kind of theft where the thing stolen is information.
Now if that’s so, according to most views deception is a Torah prohibition. There is a Ritva in Hullin there in the passage, and others; according to most views it is a Torah prohibition, except for the Bach, I think, or someone who says it’s rabbinic. What does that mean? That there is Torah-level ownership over information, because otherwise how can one rob information or steal information? So there you have an example—or rather a source, not an example, a source—for there being ownership over something that has no substance, so long as it is not attached to something that has substance. And that is what Reish Lakish says here. Reish Lakish is essentially arguing: fire is indeed something without substance, but it is an abstract thing—yet it is a thing. It also has effects in the world; it can burn. So it’s not—true, you can’t touch it, and it’s also not advisable to try. But still you can’t say it is nothing. It is not nothing. It is simply an abstract thing. Over an abstract thing, says Reish Lakish, there can be ownership, yes? I am a person—I, this is my property that caused damage.
That does not mean Reish Lakish would obligate someone who takes it as a thief. Why not? Because one candle can light one candle or a hundred. Meaning, if I took your fire, I didn’t deprive you of anything. The fire is still yours; it remains yours. So therefore you can’t relate to me as a thief. But it is not true that the fire isn’t yours. It is yours—for purposes of tort liability, for example.
[Speaker B] By the way, a thief who didn’t cause loss. What? It’s not “not a thief”; it’s simply a thief who didn’t cause loss.
[Rabbi Michael Abraham] Yes, but if—
[Speaker B] You—
[Rabbi Michael Abraham] So I’m saying: you can say he violated the prohibition of theft. I’m not sure it would be called that he violated the prohibition of theft. It may be that he is not a thief at all. But I don’t care—define it as a thief who didn’t cause loss; that’s even better for my approach. I just don’t think it’s correct. But I’m only trying to say that for our purposes I am an owner in every sense. So theft doesn’t apply to it—so what? I’m still the owner. Like something worth less than a perutah. Let’s say there’s no prohibition of theft on that. That doesn’t mean it’s not mine. It is mine. There’s just no prohibition of theft on it. If I got an etrog worth less than a perutah, can’t I fulfill the commandment with it because there’s no rule of “it shall be yours”? Of course I can. It is mine in every respect. So if someone steals it he won’t violate the prohibition of theft—so what? That’s unrelated. Okay?
So the point is—and by the way, since we mentioned it—well, we really need to go out for a break, but just one sentence. Regarding an idea, one could also make the same claim: if I took your idea, after all I didn’t deprive you of anything; the idea remains with you. It’s not that you forgot it, like the tune of the shepherd from the Baal Shem Tov story, right? That he paid him—or all those rebbe stories. That he paid him a perutah and then he forgot the tune and then the rebbe bought it from him. Usually it doesn’t work like that. When you take an idea or some song and copy it or something like that, you didn’t take the idea away from its originator. The originator still has the idea; you just took it too. So that is similar to fire. But it’s not similar to fire. And do you know why not? That’s what I proved from the Talmud in Sanhedrin there in that same article. Because the value of an idea is its uniqueness. Meaning, an idea that everyone knows is worth nothing. That idea has meaning; it can constitute property only where only I know it, or only a few people know it. Let’s say a craft. So maybe there are excellent surgeons—suppose there are ten like that. It still has monetary value to possess that craft, because there are ten like you and not everyone knows how to do it. If everyone knew how to do it, then it wouldn’t be worth money, it would be nothing, it wouldn’t be property. Therefore, unlike—this is called theft. It is called theft because I lowered the uniqueness of the information that he possesses. Maybe one could even say it’s more like a damager than a thief, because I reduced the value of the thing he possesses—not that I took something from him, but that I reduced the value of the thing he has. A thief is one of the primary categories of damages in those baraitot in Bava Kamma, those of Rabbi Hiyya and Rabbi Oshaya.
Okay, let’s stop here for a few minutes, and until three or four minutes from now we’ll take a short refresh break and come back. Okay, let’s return. Let’s return to the second part of the lesson. We’ll continue discussing the matter of information and craft. We’ll begin. We’re now going to speak about the topic of—okay, let’s continue.
One more comment regarding Reish Lakish. Reish Lakish says that the difference between fire and an arrow is that the arrow goes by the force of the person, whereas the fire does not go by the force of the person. That itself could be understood in two ways, and at one time I thought maybe this is a dispute between Rashi and Rabbeinu Hananel there in the passage. I’m not one hundred percent sure, but their words do suggest that a bit. What exactly is the difference? One could say that the difference is a question of how the damage itself is carried out. When the fire burns something, the act of burning—the power to burn—is a power embedded in the fire itself. It’s not a power that comes from me. I lit the fire, but in the end when it damages, it damages on its own account. In that sense it’s like an ox that causes damage, or my property that goes and causes damage; it’s not my force mediated through something else. That other thing causes damage by its own force. By contrast, with an arrow, when the arrow reaches the vessel and hits it, its power to destroy the vessel comes from me. I put that power into it. Therefore the arrow is some kind of medium that transfers the force from me to the broken vessel, and therefore it is a person causing damage. Fire doesn’t transfer any force from me; it itself causes damage. In that sense it is exactly like damaging property.
But when you read the medieval authorities, you see that usually they did not explain it that way. Rather, they explained it through the question of how the thing reaches the place of damage. The arrow reaches the place of damage because I shoot it, because I throw something, okay? Or when I draw the bow, no matter—it’s like throwing. So basically the way the arrow travels to the place of damage is by my force. I’m really the one who brought it to the place of damage. With fire, it burns, and the ordinary wind perhaps carries it, or whatever it may be, but I did not bring it to the place of damage. Then the difference is a question of what brought the thing to the place of damage, and not from what force the damage itself is actually done. And in Rashi and in most of the medieval authorities, when you look at how they explain it, they go in that second direction, not the first—even though I would have thought that the first direction is actually the more relevant distinction for our purposes. Because the question is how you do the damage. Why should I care how it got to the place of damage? What difference does that make? What’s the point?
The point is that you can also see in the Talmud on 6a, yes, regarding one’s stone, knife, and burden that were placed on top of the roof and fell by a normal wind, came to rest on the ground, and caused damage. Like a pit—they were lying on the ground and someone fell, tripped over them, fell on them and was injured. There too the Talmud derives it from the common denominator of fire and pit. Now what does that have to do with fire? A thing lying on the ground and someone bumps into it and is injured—that is totally pit. Why do we need the common denominator of fire and pit here? So the simple explanation is: how did they get to the ground? They got to the ground by the wind. The wind knocked them from the roof onto the ground, right? Meaning, unlike a pit that I dig in the public domain, one’s stone, knife, and burden came into the public domain and became a pit with the help of the wind, okay? Now there too, notice that the derivation from fire does not concern the mode of the damage itself, but the question of how the damager got to the place of damage. Right? So this idea isn’t far-fetched; we find it elsewhere too.
Still, that’s just a note. I don’t really understand why. It’s true that one could perhaps say it that way, but why not make the distinction based on the manner of the damage itself? It seems to me much more relevant, much more relevant. Makes much more sense. Fine, but that’s the comment about Reish Lakish.
Now let’s continue. The Talmud there on 22a says: Rava said, “Scripture and a baraita support Rabbi Yohanan.” Meaning, until now we saw the dispute between Rabbi Yohanan and Reish Lakish. Rava says: a verse and a baraita support Rabbi Yohanan. And maybe this also explains why the Talmud wanted Reish Lakish to give the first explanation, because there is scripture and a baraita supporting Rabbi Yohanan.
Scripture—from where? As it is written: “If a fire breaks out”—it breaks out by itself—“he who kindled the fire shall surely pay.” Learn from this that his fire is because of his arrows. “If a fire breaks out and finds thorns,” etc., “he who kindled the fire shall surely pay.” “If a fire breaks out”—it went out on its own, right? So that’s damaging property. The fire went out on its own, right? “He who kindled the fire shall surely pay.” So the one who kindled it is the one who caused the damage here, right? He is considered the one who burned. Not that the fire did the damage, but rather I did the damage. How so? You see that his fire is because of his arrows. The kindler is considered the one who actually caused the damage even though the fire went out on its own. So from the language of the verse you see that his fire is because of his arrows. That’s the verse.
And the baraita: as it was taught, “The verse began with damage caused by one’s property and ended with damage caused by one’s person, to tell you that his fire is because of his arrows.” The baraita, by the way, says the same thing. It takes that same verse: the verse begins with damage caused by one’s property—“If a fire breaks out”—and ends with damage caused by one’s person—“he who kindled the fire shall surely pay”—to tell you that his fire is because of his arrows.
Of course, this raises the question: what do you mean, “scripture and a baraita”? The baraita says that the verse supports Rabbi Yohanan. What is that?
[Speaker C] But the baraita explicitly says “to tell you that his fire is because of his arrows”—explicitly. The verse itself didn’t say “his fire is because of his arrows”; we only inferred that from the verse. But I’m saying the baraita is tannaitic support for Rabbi Yohanan, that there are tannaim who hold this way.
[Rabbi Michael Abraham] Suppose you were able to find me another explanation of the verse that reconciles it with Reish Lakish—fine. But there is a baraita against you, because the tannaim do interpret the verse like Rabbi Yohanan. Okay? It reminds me—you know—there’s Shmuel HaKatan, right? What is the verse that was fluent on his lips in Pirkei Avot? What is it there about Shmuel HaKatan?
[Speaker C] Shmuel HaKatan says—he quotes a verse: “When your enemy falls, do not rejoice,” something like that.
[Rabbi Michael Abraham] "When your enemy falls, do not rejoice." Right, so they ask: what does it mean that Shmuel HaKatan used to say this? It’s a verse. So what did Shmuel HaKatan used to say? Right, Shmuel HaKatan had this verse constantly on his lips. Meaning, it was kind of his motto. It also reminds me of what appears in Yoreh De'ah, the laws of honoring one’s father and mother. It says there that a person is more obligated in the honor of his father than in the honor of his grandfather. I don’t remember now who it is there on the side—seems to me the Degul Mervavah brings proof for this from Rashi on Parashat Vayeshev. Because—how does it go there? When Jacob heard that Joseph was alive, it says, "And he offered sacrifices to the God of his father Isaac." Jacob, right. So they ask: why to the God of his father Isaac? To teach you that a person is more obligated in the honor of his father than in the honor of his father’s father. This is part of the dispute between the Maharik and Rashi there on the question of whether a person is obligated at all in honoring his grandfather. From this midrash they bring proof that there is indeed an obligation to honor one’s grandfather too, only the honor due to one’s father is greater than the honor due to one’s grandfather. Okay? In any case, someone comments there—or it’s either the Degul Mervavah, or the Degul Mervavah comments on someone else there, I don’t remember anymore. He comments: why are you bringing Rashi? There’s a midrash like this. It’s a midrash! Rashi is quoting a midrash; it’s not Rashi. Right, there are various answers there. One of the answers is that everyone knows Rashi on the Torah, whereas Midrash Rabbah is less familiar. Fine. In any event, just for our purposes: they bring this verse and the baraita in support of Rabbi Yohanan. Rava said: Abaye found this difficult. Okay? So up to here, apparently, Rava says there is a verse and a baraita supporting Rabbi Yohanan. And now Rava adds and says: Abaye found it difficult—according to the one who says that fire is liable because of his arrows, how do you ever get a case of concealed items in fire, for which the Merciful One exempted him? It sounds a bit like he’s saying that Abaye himself asked this against Rava. Right? Meaning, Rava brings that Abaye was troubled. According to the one who says that fire is liable because of his arrows, then how can there be an exemption for concealed items? After all, if an arrow hits something, you aren’t exempt for concealed property; you’re liable even for damage to hidden things. So if fire is because of his arrows, then there shouldn’t be an exemption for concealed items in the case of fire. Or, translated into our own language: really, fire—if fire is like a person causing damage, then with a person causing damage there is no exemption for concealed items. If it’s because of his property, then it’s property causing damage, and with damaging property there are various exemptions: vessels in a pit, concealed items in fire, and so on. But if it’s a person causing damage, just regular damages by a person, then what does the exemption for concealed items have to do with it? Okay, here too among the medieval authorities (Rishonim) there are formulations in both directions, as to how exactly to understand Abaye’s question. In any case, Abaye asks: with all due respect to the support from the baraita and the verse, Rabbi Yohanan is still difficult—so how is there an exemption for concealed items? That may be the justification for how one can still explain the view of Reish Lakish. Okay? And he resolved it, right? Abaye, who raised the difficulty, also resolved it. For example, where a fire broke out into a courtyard, and a wall fell not because of the fire, and then the fire went and ignited and caused damage in another courtyard—there, his arrows have already ceased. What does that mean? If we say "because of his arrows," like Rabbi Yohanan, then how can there be an exemption for concealed items? Simple: you lit the fire here, and there was a wall here. Okay? And the wall fell, and then the fire passed to the other side and caused damage. If the wall had remained standing, the fire couldn’t have crossed. When you lit the fire, it was guarded, because the wall was protecting it. Only then the wall fell, or someone knocked it down, or whatever happened, and then the fire passed through—and that is called "his arrows have ceased." What does "his arrows have ceased" mean? This is a Talmudic text in Sanhedrin: what happens if someone shoots an arrow and there is a shield in front of the arrow. Okay? Now after I shoot the arrow, someone lifts the shield. Then the arrow manages to pass through. When I shot the arrow, there was a shield there, so it wasn’t damaging at all. The fact that afterward someone lifted the shield—when I shot the arrow, there was no damaging possibility. So that is "his arrows have ceased." If his arrows have ceased, then you can’t hold me liable for anything. The Gemara says that in such a case there is an exemption for concealed items, because his arrows have ceased. Meaning, you can’t regard him as a person causing damage, because when he lit the fire there was a wall guarding it. The fact that the wall fell or someone knocked it down has nothing to do with him. When he lit the fire, he didn’t know about that. Of course, that’s only in a case where the fire itself didn’t knock down the wall. Meaning, if the fire itself knocked down the wall, that is not called "his arrows have ceased." Because when you lit the fire, you should also have taken into account that when the fire reached that point it would ignite the wall and continue onward. Okay? So we’re talking about a case where the fire itself could not knock down the wall. Someone knocked it down, or the wall fell, or whatever—that is called "his arrows have ceased." The Gemara asks: if so, then with respect to exposed property too his arrows have ceased. What does that mean? You’re explaining to me how there can be an exemption for concealed items. You’re explaining it because his arrows have ceased—but I don’t understand: if his arrows have ceased, then you also can’t hold him liable for exposed fire damage either, not only for concealed items. Like we saw with the arrow—what do you want? When he lit the fire, it was fully guarded. The fact that afterward someone knocked down the wall, or it fell, has nothing to do with him. So "his arrows have ceased" should really exempt him entirely. It’s not that this is fire that is exempt for concealed items; rather this isn’t even a damaging act of fire at all. You can’t hold him liable either for exposed or for concealed property. The Gemara says instead: the one who holds "because of his arrows" also holds "because of his property." And for example, where he should have fenced it and did not fence it, for there it is like his ox, and he did not block it off. What does that mean? The Gemara says no, we’re talking about a situation where the wall fell, and the person had time to notice that the wall had fallen and also had the ability to fix it. And he didn’t do so. And now the fire went out and caused damage. The Gemara says that in such a case this is property causing damage, not a person causing damage; it’s not an arrow. Why? Because when I lit the fire, the wall was there, and the fire had no damaging potential at all. Now the wall falls, okay? And I had a few minutes, I noticed that the wall had fallen, and I could have put it back up or arranged something there to guard my fire. In such a case, the fire is already burning—I didn’t ignite it now. So the fire resembles an ox. In such a case, there is a fire that belongs to me, and meanwhile it still isn’t damaging at all. But there is a fire that belongs to me, okay? And now the wall falls. Fine? The moment the wall falls, there is my ox that I must guard so it won’t cause damage. I didn’t guard it—this is property causing damage. Meaning, if I lit a fire and there was no wall, or there was a wall of the sort that the fire itself would knock down, then this is a person causing damage. But if I lit a fire when there was a wall that would not fall merely from the fire, then at that point it’s nothing—there’s no fire damage here at all. Now the wall falls. The moment the wall falls, if I noticed and could have fixed it, the fire is considered my property causing damage. And then the exemption for concealed items applies. Right? That’s really what the Gemara is saying. After all, the Gemara came to ask how we ever find an exemption for concealed items. So the Gemara says: here, in this situation we find an exemption for concealed items. Why? Because in this situation it is not a person causing damage, but on the other hand he is also not completely exempt. It is damaging property. It is fire as damaging property. The practical difference is that here there will be an exemption for concealed items. That is the Gemara’s conclusion. Okay? Now there is a strange point here, because what comes out now? What comes out is that Rabbi Yohanan, who said that fire is liable because of his arrows, also holds because of his arrows—but besides that, also because of his property. Okay? So the Gemara asks: now if the one who holds "because of his arrows" also holds "because of his property," what practical difference is there between them? Now what do you mean, what practical difference is there? That’s a strange question. There’s a practical difference regarding concealed items. What happens if his arrows have not ceased? Okay? If I lit a fire where there was no wall, and the wall passed and caused damage… the fire, sorry, passed and caused damage. Okay? According to Rabbi Yohanan, would there be an exemption for concealed items? In such a case the fire is a person causing damage. Right? Because his arrows have not ceased. Where his arrows have ceased, when I lit the fire there was a wall guarding it, so the fire is my property. It is property causing damage. But if there is no wall, then the fire is a person causing damage. And with a person causing damage, as the Gemara said above, there is no exemption for concealed items. The exemption for concealed items applies only when the fire is property, not when the fire is like an arrow. With arrows there is no exemption for concealed items. So what is the question, what practical difference is there? The practical difference is precisely in a case where his arrows have not ceased: according to Rabbi Yohanan there is no exemption for concealed items, and according to Reish Lakish there is an exemption for concealed items. According to Rabbi Yohanan, the exemption for concealed items exists only where his arrows have ceased, where the fire is his property that caused damage. What kind of difficulty is this—"now if he holds because of his arrows and also because of his property, what practical difference is there between them"? Look also at the answer: there is a difference with respect to making him liable for four types of compensation. What about concealed items? What does it mean, liable for four types of compensation? So there is a practical difference in making him liable for four types of compensation. Meaning, if it is because of his arrows, then this is a person causing damage, so he is also liable for embarrassment, loss of livelihood, damage, and medical expenses. Not embarrassment, actually, because embarrassment requires intent. But in any case, these are the liabilities of a person causing damage. But what about concealed items? Why didn’t they mention concealed items? Some of the medieval authorities (Rishonim) say they mean concealed items too; concealed items were already stated above. Here they added the four types of compensation. But the flow of the Gemara is strange—notice that. Because if they already knew concealed items from above, then you can add that there is also a practical difference regarding four types of compensation, but you can’t ask "what practical difference is there?" You can say that besides the practical difference regarding concealed items—which we already said above, since the whole discussion above was to explain how there can be an exemption for concealed items—so what is the question, what practical difference is there? The practical difference is the exemption for concealed items—that’s the main difference between them. You can say that besides the exemption for concealed items, there is also a practical difference regarding liability for four types of compensation. But what is this question: what practical difference is there? Fine. But that’s how most of the medieval authorities (Rishonim) understand it. I’m presenting this here because in a moment we’ll see Maimonides’ view. But most of the medieval authorities (Rishonim) understand the Gemara’s conclusion like this: we rule in accordance with Rabbi Yohanan against Reish Lakish. In general, the Jewish law is always like Rabbi Yohanan against Reish Lakish, and here there is even a verse and a baraita supporting him. Okay? Therefore the Jewish law is like Rabbi Yohanan; all the decisors ruled that way. So what will the Jewish law be? It depends. If his arrows have not ceased—meaning, I lit the fire and it immediately went and caused damage, there was nothing protecting against that damage—then this is called a person causing damage, and there is no exemption for concealed items and no exemption from the four types of compensation. If his arrows have ceased—meaning that when I lit it there was a wall that could guard it and the wall later fell—then this is property causing damage, and there the exemption for concealed items applies and you are not liable for the four types of compensation. And the primary category of damage of fire that appears in the Mishnah at the beginning of Bava Kamma refers only to a fire whose arrows have ceased. Because if his arrows have not ceased, then this is simply a person causing damage—it’s like an arrow. Okay? That is the Gemara’s conclusion according to most of the medieval authorities (Rishonim). Maimonides, in chapter 14, law 15, writes as follows: If a fire spread and injured a person and wounded him, the one who ignited it is liable for his damage, his loss of livelihood, his medical expenses, his pain, and his embarrassment, as though he had harmed him with his own hands. Five things, by the way, not four things—also interesting. Because straightforwardly, embarrassment is only if you intended to embarrass. And therefore Rashi here explains that that is why they said four things and not five, because embarrassment doesn’t apply here. This is a person causing damage, but since he did not intend it, there is no embarrassment here. "Even though his fire is his property, it is as though he caused damage with his arrows." You see a strange formulation. What does that mean? So how is he ruling—like Rabbi Yohanan or like Reish Lakish? On the one hand he rules like Rabbi Yohanan, right? Because he says that one is liable for four things—well, for five things—for fire damage; this is a person causing damage, right? But he says, "even though his fire is his property, it is as though he caused damage with his arrows." So are you bringing in Reish Lakish, that fire is because of his property? Apparently he means the conclusion of our Gemara here: that Rabbi Yohanan, who says fire is because of his arrows, also holds fire is because of his property. But in our Gemara as we read it, it doesn’t work like that. In our Gemara the meaning was that when his arrows have ceased, it is only his property; and when his arrows have not ceased, it is only his arrows, only a person causing damage. Maimonides makes no distinction here at all between where his arrows have ceased and where they have not. On the other hand, Maimonides sees fire damage as property causing damage that is as though he caused damage with his arrows, and therefore he is liable for five things. It very much smells like Maimonides read the Gemara differently. Maimonides claims there is no difference between where his arrows have ceased and where they have not. How he manages with the Gemara we’ll see in a moment, but there is no difference between where his arrows have ceased and where they have not—that is what is written in Maimonides. And in both of these cases this is property causing damage; the practical difference is that there will be an exemption for concealed items. Whether his arrows have ceased or not, there will be an exemption for concealed items. But he will still be liable for five things like a person causing damage. Between property causing damage and a person causing damage, this is something in between. Maimonides really completes the whole introduction I gave to this class. Meaning, now there is this thing called fire, and suddenly we discover that it is an intermediate category. It is property causing damage that incurs liability for five things like a person causing damage—but notice, it has the exemption for concealed items. Meaning, it is property causing damage; fire is property causing damage that has an exemption for concealed items, whether his arrows have ceased or not. But despite being property causing damage, there is the novel point that he is liable for five things. If we really understand Maimonides this way, then we need to understand the logic and exactly how it works—but in the Gemara a lot of things become settled. Because I think the Maggid Mishneh here is puzzled by Maimonides. The Maggid Mishneh says as follows: "If a fire spread," etc.—this is explained in the chapter "How the Foot [Causes Damage]," and it is the dispute of Rabbi Yohanan, and he ruled like Rabbi Yohanan who says fire is because of his arrows. "And I wonder: since our master ruled like Rabbi Yohanan, how did he fail to distinguish regarding concealed items as the sugya there distinguishes? For according to Rabbi Yohanan we only find concealed items exempt where a wall fell not because of the fire, and he should have fenced it but did not fence it." Maimonides does not bring the exemption for concealed items, does not distinguish between where his arrows have ceased and where they have not, and this whole sugya does not fit with Maimonides. "Perhaps our master interpreted it differently. And it is possible that his view is that we should not abandon the plain meaning of the Mishnayot, the baraitot, and the statements that did not distinguish regarding concealed items because of this sugya." Meaning, the anonymous discussions elsewhere in the Gemara probably disagree with this sugya. And the anonymous material elsewhere is that they don’t distinguish regarding concealed items anywhere; in all the sugyot that discuss the exemption for concealed items, nobody bothers to say, wait, wait—is this talking about where his arrows have ceased or where they have not? Since the exemption for concealed items applies to all fire damage, whether his arrows have ceased or not. So the Maggid Mishneh says Maimonides probably understands this as a dispute among sugyot: either he interprets our sugya differently, or he interprets our sugya like everyone else, but he thinks this sugya was not ruled as the Jewish law, because the anonymous material in the other sugyot contradicts it. In the Shulchan Arukh, for example, when he brings this as practical Jewish law, he does bring it. If a fire spread and injured a person and wounded him, the one who ignited it is liable for his damage, his loss of livelihood, his medical expenses, his pain, and his embarrassment, as though he had harmed him with his own hands. Because his fire is his property. Right, the phrase "even though" here is in parentheses, not important—because his fire is his property, it is as though he caused damage with his arrows, provided that at the time he lit it, the fire was fit to reach the place where it caused damage. But if it was not fit to reach there, for example if there was a wall between them and it fell not because of the fire, then even if he could have fenced it, his arrows have already ceased, and it has the law of his property that damaged a person, in which he is liable only for damage and exempt from the other four things. Okay? He says not that he is liable for four things, but that he is exempt from four things, because he follows Maimonides that the liability is for five things, not four. So he is exempt from four and remains liable only for damage. So he does make a distinction between where his arrows have ceased and where they have not, and the Shulchan Arukh usually—I didn’t look at the Beit Yosef actually, I didn’t check, you’d have to check the Beit Yosef—because usually the Shulchan Arukh follows Maimonides, and here he adds this distinction that did not appear in Maimonides. So one could say that Maimonides… that he already relied on this point because we see it in the Gemara, and he himself in law 4 of that same chapter, ten laws earlier, says: If a fire broke out in his courtyard and a wall fell not because of the fire, and it spread and ignited another courtyard, if he could have fenced the wall that fell and did not fence it, he is liable. What is this comparable to? To his ox that went out and caused damage, where he should have guarded it and did not guard it. So here he does bring the Gemara’s distinction. But notice: he doesn’t bring any practical difference. He only says: after I explained to you that there is this damager called fire, then in a case where a fire broke out in his courtyard and the wall fell not because of the fire and it spread and ignited another courtyard, if he could have fenced it, then he is liable. But Maimonides does not say that this is a different kind of damager, that it is property causing damage, unlike ordinary fire which is a person causing damage. He doesn’t mention… not even a hint. He just wants to say that in such a situation, since apparently this is a case where his arrows have ceased and he should have been completely exempt, he says no: if he had time to fence it and did not fence it, he is still liable. For what? For everything that fire is liable for. He does not bring this distinction as a distinction in the way it appears in our Gemara. Therefore some were puzzled by the Maggid Mishneh: why are you objecting to Maimonides? Maimonides brings this distinction in law 4. He doesn’t go into it again. That’s not true. It’s simply not true. The Maggid Mishneh is right. Because Maimonides brings this distinction as a novelty that even in such a case you are liable for fire damages. Nowhere does he write that there is a difference in fire damages between where his arrows have ceased and where they have not. More than that: he also does not write that there is any situation in which one is liable… in which one is liable for concealed items in fire. All he brings is that fire is liable for four things—and even that without any connection to whether his arrows have ceased or not. In my opinion, Maimonides learned the Gemara differently. I think Maimonides learned the Gemara like this. Let’s go back to the Gemara for a moment. The Gemara says as follows, look. I’m reading the Gemara now. Right, look at the Gemara. The Gemara says: so how do we find the exemption for concealed items according to Rabbi Yohanan? The Gemara says there is a difference between where his arrows have ceased and where they have not. The Gemara then says: wait, but if his arrows have ceased, then he should be completely exempt, even for exposed property, not just concealed property. Right? Rather, the one who holds "because of his arrows" also holds "because of his property." Here Maimonides reads it differently. What does that mean? That someone who says fire is because of his arrows does not mean that it is literally his arrows. He too agrees that it is his property, only it is a kind of property that has an aspect of his arrows. He is not talking about two situations; he does not mean that someone who holds fire is because of his property also holds because of his arrows, and where his arrows have ceased it is his property, and where his arrows have not ceased it is… his arrows. No. The difference between where his arrows have ceased and where they have not drops away. Because the Gemara says that with respect to exposed property too, his arrows have ceased. Therefore that distinction falls away—finished, the whole distinction is gone. There is no difference. Where his arrows have ceased and where they have not is the same thing. So the question returns: then where do we find the exemption for concealed items according to Rabbi Yohanan? The Gemara answers with a different answer. No, it has nothing to do with whether his arrows have ceased or not. According to Rabbi Yohanan there is an exemption for concealed items in fire because for Rabbi Yohanan, fire is not literally a person causing damage. Therefore there is an exemption for concealed items; it is property causing damage. All Rabbi Yohanan says is that it is like his arrows, but in essence it has the law of property causing damage. And now the Gemara asks: excellent—now if the one who holds "because of his arrows" also holds "because of his property," what practical difference is there between them? I asked earlier…
[Speaker C] The Rabbi skipped a sentence. How does Maimonides explain the sentence, "for example, where he should have fenced it and did not fence it, for there it is his ox and he did not block it off"? So why does that sentence appear at all?
[Rabbi Michael Abraham] Maimonides—either Maimonides doesn’t include that sentence at all, he didn’t have it in his text, or that sentence comes to say… it gets moved earlier. Meaning, when they tried to distinguish between where his arrows have ceased and where they have not, they are obviously talking about a case where he should have fenced it and did not fence it. That’s what is written in Maimonides.
[Speaker C] Both explanations are forced.
[Rabbi Michael Abraham] So I’m saying, obviously—clearly—he had a different version of the Gemara. But if he had a different version of the Gemara, then everything is smooth. I mean, what—it’s not forced, I’m not… he doesn’t owe anything to Rashi’s version; he had his own version. Rashi too is forced according to his own version. According to Rashi’s own version it’s forced. Because what does "what practical difference is there" mean? I already showed you above that the practical difference concerns concealed items. So what does "what practical difference is there" mean? What kind of question is that? But according to Maimonides it’s wonderful, because Maimonides says: what do you want? Rabbi Yohanan also says fire is because of his property, only it is like… because of his arrows. The Gemara asks: what practical difference is there in saying it is like his arrows? After all, regarding the exemption for concealed items, you tell me there is an exemption for concealed items, so it is like his property. Then he is completely like Reish Lakish—so what is the difference? The Gemara answers: four types of compensation. What does that mean? Notice—not concealed items. Concealed items are not the practical difference. Four types of compensation. And the four types of compensation apply whether his arrows have ceased or not. It makes no difference. Fire is a type of damager such that even though it is his property, he is liable for four types of compensation. Four types of compensation. And that is exactly what Maimonides writes: that even though fire is his property, one incurs liability for four types of compensation through it. That is exactly what Maimonides says. Clearly that is how he read the Gemara. And therefore Maimonides—notice—where does he actually bring the case "he should have fenced it and did not fence it"? In law 4. Because in law 4 he is talking about the very definition of the damager called fire. The definition of the damager called fire, Maimonides says, includes even the case where when you lit the fire there was a wall. If it later fell and you had time to fence it and did not fence it. That is only part of defining the damager, but it is not that there it is property and without that it is a person causing damage. Therefore it is quite clear that as long as he should have fenced it and did not fence it, that appears earlier in Maimonides. It comes to say that where there was a wall and his arrows have ceased—when are you still liable even then? When he should have fenced it and did not fence it. So therefore, if I sum up—we need to finish already—according to Maimonides the conclusion is, and now we’ll get to our sugya—not now, but in the next class—but now we understand that according to Maimonides, when Rabbi Yohanan says fire is because of his arrows, which is how we rule in practical Jewish law, it does not mean literally because of his arrows. Fire is because of his property, and therefore there is an exemption for concealed items. Only there is liability for five things. It is property that incurs liability for five things. That is Rabbi Yohanan’s claim, and that is the practical difference between him and Reish Lakish. Regarding concealed items there is no practical difference. And there is no difference between where his arrows have ceased and where they have not. We will see the implications in our sugya. According to Maimonides, our sugya also becomes smooth, by the way. That sugya is better, and our sugya is also better according to Maimonides. But I just want to bring us back to what I opened with. Everything started from the point that fire is not entirely a person causing damage and not entirely property causing damage, right? After all, everyone agrees—Rabbi Yohanan, Reish Lakish, and all the medieval authorities (Rishonim), no matter how they explain the dispute between Rabbi Yohanan and Reish Lakish—that it is not natural to say this is a person causing damage. After all, there is a difference between an arrow and fire; the Gemara itself says so. Rabbi Yohanan does not deny that difference, that an arrow proceeds directly from the person’s force and fire does not. Everyone also agrees—according to Rabbi Yohanan, sorry—that there is no substance to it in fire, so ownership doesn’t naturally apply to it. So everyone agrees that fire is an intermediate level. Maimonides says: if so, why force it entirely into one of the categories—either property causing damage or a person causing damage? No. The halakhic category of fire is also something in between. It is property causing damage that bears liability for four types of compensation. It is something in between; it stands between a person causing damage and property causing damage. Let’s stop here. Next class is the last class of this semester. I’ll try to get back to Rav Ashi and at least finish this issue of bending over someone else’s grain. Thank you very much. Thank you very much. Thank you.
[Speaker B] Rabbah.