Receiver Chapter – Lesson 17
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- Liable by the laws of Heaven as indirect causation: Meiri versus Pnei Yehoshua
- One witness, an oath, and “since he cannot swear, he pays”
- The Talmud: “one who knows testimony for his fellow and does not testify for him” and the interpretive setups
- Preventing rescue versus indirect causation: who “caused the loss”
- The meaning of “and he shall bear his iniquity” as payment or as punishment
- The Talmud’s novelty regarding one witness: perhaps he would have sworn falsely
- Shulchan Arukh and Maimonides: the duty to testify and the condition of a claim
- Rashi: “every place where ‘witness’ is stated, there are two witnesses here”
- Netivot and Tummim: one witness as a rabbinic obligation and the practical difference for an oath
- Tosafot: “if he does not tell” is not dependent on the oath of testimony
- Pnei Yehoshua: why it states outright “liable by the laws of Heaven,” and what role intent plays
Summary
General overview
The lecture deals with laws in which a person is exempt in human courts yet liable by the laws of Heaven, and examines the meaning of the phrase “liable by the laws of Heaven” in the dispute between Meiri and Pnei Yehoshua: whether this means an obligation to pay, or an obligation that stems only from a prohibition. The central case is “one who knows testimony for his fellow and does not testify for him,” and the discussion examines whether failure to testify counts as indirect causation / more direct indirect damage, or whether it is mainly a matter of failing to rescue someone from a loss. It also asks what practical difference there is between testimony of two witnesses and testimony of one witness who obligates an oath. Through analysis of the Talmud, Rashi, Tosafot, the Shulchan Arukh, Maimonides, Netivot, and Pnei Yehoshua, different ways are presented to understand what the liability by the laws of Heaven is here, what its source is, and what significance there is to the possibility that the defendant would have sworn falsely.
Liable by the laws of Heaven as indirect causation: Meiri versus Pnei Yehoshua
Meiri is understood as saying that “liable by the laws of Heaven” means an obligation to pay, whereas Pnei Yehoshua understands it to mean that the person violated a prohibition and therefore the act is forbidden, without any obligation to pay. The lecture presents this difference as a foundational point for understanding the whole topic, because if the liability is payment, one must define what damage was caused and what the causal connection is; whereas if the liability is prohibitive in nature, it is enough that there was a duty to testify. The lecture suggests that even if one accepts Meiri, it may be that the obligation to pay here is not compensation for damage through indirect causation, but rather a payment with a punitive character, similar to a fine.
One witness, an oath, and “since he cannot swear, he pays”
The lecture first introduces the laws of one witness: one witness obligates an oath, and if the defendant does not swear, he pays under the rule “since he cannot swear, he pays.” Two basic conceptions are presented: one sees the payment under this rule as a penalty designed to give “teeth” to the obligation of the oath; the second sees one witness as obligating payment, with the possibility of exemption through an oath. A third possibility is also suggested, according to which the essential obligating factor is the claim itself, and the refusal to swear joins it as evidence against the defendant. This helps clarify whether a witness who did not testify is considered someone who caused monetary loss, or merely prevented a procedural mechanism from operating.
The Talmud: “one who knows testimony for his fellow and does not testify for him” and the interpretive setups
The Talmud asks concerning this case, “What are we dealing with?” and suggests that if it refers to two witnesses, then it is “obvious,” because this is a Torah-level law: “If he does not tell, then he shall bear his iniquity.” The lecture emphasizes that this obviousness seems directed more toward the prohibition itself than toward an obligation to pay. It is noted that the Talmud does not ask here, “Then he should also be liable in human courts,” implying that for the Talmud it is obvious that there is no liability in human courts, because this is at most indirect causation, and perhaps even less than that. The Talmud’s conclusion is that the case involves one witness, and the novelty is that even in the case of one witness there is a duty to testify when the testimony has legal effect, such as creating an obligation to swear.
Preventing rescue versus indirect causation: who “caused the loss”
The lecture argues that the witness who does not testify is not the direct damager, because the one who caused the loss is the borrower who does not pay. The witness, at most, could have rescued the injured party from the loss and did not do so. An illustration is given of someone walking by a river while another person’s object is drowning, and he could save it without effort but does not; this is described as preventing rescue, not as indirect causation in torts that creates liability. From this it is argued that if there is an obligation to pay here by the laws of Heaven, it does not stem from the ordinary laws of indirect damage, but from a special law of the Torah or from a punitive payment.
The meaning of “and he shall bear his iniquity” as payment or as punishment
The lecture suggests that according to Meiri, there is no choice but to read “if he does not tell, then he shall bear his iniquity” as hinting to an obligation to pay by the laws of Heaven, even though that is not the plain sense of the verse. From this follows the conclusion that this case is unusual compared to the other cases in the baraita. The lecture stresses that if the payment is not compensation for damage but punishment, then even doubtful loss does not prevent liability—similar to the idea of the payments of conspiring witnesses, who pay even when money was not actually extracted. On that basis, it suggests understanding “and he shall bear his iniquity” as a duty of rectification and punishment imposed on one who refrained from testifying, and not necessarily as monetary liability arising from a tort-like causal connection.
The Talmud’s novelty regarding one witness: perhaps he would have sworn falsely
The Talmud explains the novelty in the case of one witness by saying that one might have thought that even by the laws of Heaven he would not be liable, because perhaps if he had testified, the defendant would have sworn falsely, and therefore no loss would ultimately have been caused. The Talmud concludes: “It therefore teaches us” that he is liable. The lecture presents two ways to read this “it teaches us”: one possibility is that liability exists even for doubtful loss, and the second is that the liability is not built on compensating loss at all, but on the very transgression of failing to testify, so the possibility of a false oath is irrelevant. The lecture notes that the Talmud’s focus on the possibility of an oath may hint in the direction of monetary damage, but argues that conceptually it is difficult to see this as ordinary indirect-causation liability.
Shulchan Arukh and Maimonides: the duty to testify and the condition of a claim
The Shulchan Arukh rules that anyone who knows testimony for his fellow, is fit to testify, and whose fellow will benefit from his testimony, is obligated to testify if he was asked to do so—whether there is another witness with him or whether he is alone. If he suppresses his testimony, he is exempt in human courts but liable by the laws of Heaven. The gloss adds that one witness testifies in monetary matters that bring about an oath, or in matters of prohibition for the purpose of separating someone from sin; but if the prohibition has already been committed, he should not testify, because then he is like one who spreads a bad name. Maimonides writes that a witness is commanded to testify in any testimony he knows, whether to obligate or to acquit, provided that he is asked in monetary cases, and this is learned from the verse: “And he is a witness, or he saw, or he knew—if he does not tell, then he shall bear his iniquity.”
Rashi: “every place where ‘witness’ is stated, there are two witnesses here”
Rashi explains that the verse “if he does not tell” speaks of two witnesses, because “witness” stated without qualification means two witnesses unless Scripture specifies “one.” From this, the obviousness in the Talmud regarding two witnesses rests on the idea that the verse is dealing with testimony that extracts money. Rashi explains that in the case of one witness, the liability by the laws of Heaven is because, had he testified, he would have obligated an oath, and perhaps the defendant would have refrained from swearing falsely and paid. The emphasis is on the possibility that a loss was thereby caused. The lecture argues that by introducing this possibility, Rashi hints toward understanding the liability as connected to possible monetary loss and not merely punishment for the bare failure to testify, even though this still would not be ordinary laws of more direct indirect damage.
Netivot and Tummim: one witness as a rabbinic obligation and the practical difference for an oath
Netivot writes that one witness does not violate “if he does not tell” on a Torah level, but only rabbinically, and he understands Bava Kamma 56 that way. He brings a practical difference concerning someone who swore that he would not testify: if the obligation is Torah-level, the oath does not take effect, because one cannot swear to nullify a commandment; but if the obligation is rabbinic, the oath does take effect. The lecture expresses reservations about this reading and argues that neither Maimonides nor the Shulchan Arukh imply such a distinction, and that the Talmudic expression “it is Torah-level” may be read as referring to the fact that the law is written in the Torah, not necessarily as classifying one witness as merely rabbinic.
Tosafot: “if he does not tell” is not dependent on the oath of testimony
Tosafot asks that the verse “if he does not tell, then he shall bear his iniquity” is stated in the context of “and he hears the voice of adjuration,” and therefore seemingly refers to a case of the oath of testimony. Tosafot answers that bearing the iniquity exists even without an oath, and the verse merely establishes that when this is a case involving bearing iniquity, then if he swears falsely he also becomes liable for the offering of the oath of testimony. Tosafot proves this from the Mishnah that warns witnesses, “lest you say: what do we need this trouble for?” and then brings the verse “if he does not tell, then he shall bear,” implying that the duty to testify and the sin of suppressing testimony exist even without an oath. Based on this, the lecture raises the possibility that the offering comes for the failure to testify, with the oath serving as a condition for the application of the sacrificial liability, but stresses that the prohibition itself is not dependent on an oath.
Pnei Yehoshua: why it states outright “liable by the laws of Heaven,” and what role intent plays
Pnei Yehoshua asks why it is stated categorically that he is liable by the laws of Heaven—after all, “before Heaven it is revealed” whether the defendant would have sworn or not, and if the liability depended on actual loss, it should depend on that knowledge. Pnei Yehoshua answers that since the witness himself does not know what would have happened, and he does not care about his fellow’s money, he is liable by the laws of Heaven because he intended to cause harm, and intention creates liability on that plane. The lecture explains that this fits well with Pnei Yehoshua’s approach, which sees the core issue here as a prohibition, and adds that perhaps even according to Meiri this can be reconciled if one sees the payment as punishment for the transgression rather than compensation for result-dependent damage.
Full Transcript
[Rabbi Michael Abraham] Okay, I’m starting the recording now. I didn’t record before, so I only gave the second part—I only gave the background—that we’re dealing here with things a person does where he is exempt in human courts but liable by the laws of Heaven. Plainly speaking, that’s from the laws of indirect causation. We talked about the fact that there’s a dispute between Meiri and Pnei Yehoshua about what “liable by the laws of Heaven” means: whether he has to pay, as Meiri says, or whether he is liable only in the sense that he violated a prohibition and therefore the act is forbidden—not that he has to pay. We discussed three cases last semester, this semester too—or really already this semester as well—and now we’ve reached the fourth case, which is someone who knows testimony for his fellow and doesn’t testify for him, where here too he is exempt in human courts and liable by the laws of Heaven. I gave a few examples, or at least I first introduced the point that there is a duty to testify: “if he does not tell, then he shall bear his iniquity.” Our discussion is about whether, if someone did not fulfill his duty, he has to compensate the injured party, and whether that is in human courts or by the laws of Heaven. “The injured party” means, in other words, the one who lost out because you didn’t come testify. According to the Torah, I also mentioned beforehand, of course only two witnesses can extract money. One witness obligates an oath. As for the oath generated by one witness—but still, if the other side does not swear, then he pays: “since he cannot swear, he pays.” And that rule, this “since,” can be interpreted in two ways, very schematically. One possibility is that it’s a penalty. If you don’t swear, then they penalize you and make you pay, because otherwise there are no teeth to the obligation imposed on you to swear. A person could say, I don’t want to swear, and he pays no price at all—so there has to be some price so that there are teeth to the obligation to swear, and then the view is that it’s a penalty. According to that, the one witness obligates you to swear; the money is only some derivative consequence. In contrast, the second view says no: the one witness obligates you monetarily, only since it’s one witness and not two, you have the option of exempting yourself if you swear. Okay? But if you didn’t swear, then you weren’t exempted, so the money you pay is money that the witness himself obligated you to pay. Okay? And the difference, I said, between these two conceptions is in how I relate to a witness who didn’t testify—could have testified and didn’t. Did he actually cause monetary loss to the person for whose benefit he was supposed to testify? Because if the other party wouldn’t have sworn, then he would have had to pay, so it turns out I caused him a monetary loss. If the payment he would have made when he didn’t swear is the monetary liability created by the witness, then it’s easier to say that a witness who didn’t testify caused you monetary loss. If the payment of the money is only a penalty to give teeth to the obligation—
[Speaker B] —of the oath, then it’s harder to say that the witness who didn’t testify caused you monetary loss. Up to this point, those were the introductions. Now yes, we were at the question—sorry. In the meantime, you reached another formulation. Maybe we can add a third possibility to this analysis. What obligates me is the claimant. The claimant obligates. It’s just that, in principle, if I deny it, that’s a strong claim against him. But if a witness comes and I refuse to swear, then now there’s added evidence against me. Why exactly are you refusing to swear? As long as you’re righteous—but it could very well be that you know you’re guilty, that you owe money—so now there’s evidence against me, and now what obligates me is not the witness’s testimony that obligated me to swear.
[Rabbi Michael Abraham] You’re adding to the witness evidence from the fact that you didn’t swear.
[Speaker B] Yes, but the claimant is what obligates.
[Rabbi Michael Abraham] Okay, that really is a question—whether it’s a good or bad framework—it’ll already shake up your foundations.
[Speaker B] But that was only in order to say: the central point isn’t that there’s a third mechanism here, but that we don’t have to get into this dichotomy at all—whether the witness obligates me or doesn’t obligate me. What always obligates me is the claim. The witness—why am I obligated to pay because a witness came?
[Rabbi Michael Abraham] No, I’m telling you, it’s not even the claim. What obligates you is that you borrowed.
[Speaker B] Right, that I borrowed.
[Rabbi Michael Abraham] Fine, but that’s not the issue. Our discussion isn’t about that. The witness who didn’t come testify doesn’t affect the question of whether you borrowed or not.
[Speaker B] It’s always several factors joining together so that in the end I’m obligated.
[Rabbi Michael Abraham] There’s evidence this way and evidence that way, and an oath with added evidence. No, no—but when you discuss the question of whether a witness is obligated to testify, and he didn’t do his duty, didn’t come testify—fine, then I ask: did he cause me monetary loss? If his testimony, if his testimony, takes part—true, there are other things too—but if it takes part in the fact that without it I won’t get the money, that means he caused me monetary loss.
[Speaker B] But is that a necessary condition?
[Rabbi Michael Abraham] No, but I’m saying—if you understand “since” only as a penalty to give teeth to the obligation of the oath, then no, because then the witness is not even part of what obligates you to pay money. You’re not monetarily obligated—without him you wouldn’t have paid. Obligated—you’re also not obligated now.
[Speaker B] Fine, but regarding the penalty, on that he would swear?
[Rabbi Michael Abraham] No, that’s what I’m saying. Again, one could have said—but there’s definitely room to distinguish. We’ll get to that. There’s definitely room to distinguish, because no—he didn’t cause you the loss of the penalty, because he doesn’t owe you the penalty. A penalty is a punishment on him; it has nothing to do with you. You aren’t owed anything.
[Speaker B] He doesn’t owe it, but now why—
[Rabbi Michael Abraham] If you want, I—
[Speaker B] —there’s less money in my pocket.
[Rabbi Michael Abraham] No, there isn’t more money in your pocket—not that there’s less money. Okay? No, that’s the difference. Because if he owes you, then there’s less in your pocket. Again, that’s the difference. No, it’s a big difference. It’s a big difference between driving away a lion, and someone who caused you a loss, and someone who—fine, we’ll get there. In any event, that’s the case, so let’s go into the fourth case. I’m opening the Talmud, and where it appears for you in the file, you can also see it there. “One who knows testimony for his fellow and does not testify for him.” Actually, if you have—wait—if you have internet, you can just go into Zoom and see the file I’m sharing with the people on Zoom; you can also kind of be on Zoom. Okay, fine. It sort of doesn’t let me first, but I—
[Speaker C] I don’t recommend it because it’s a bit complicated to mute Zoom when you’re in the same room.
[Rabbi Michael Abraham] Again? Okay. Fine, in any event, I’m just marking things here; you don’t have the markings, okay, so that you’ll have them. “One who knows testimony for his fellow and does not testify for him.” That’s the fourth case that appears there in the baraita. The Talmud asks: what are we dealing with? What exactly is the case? If you say it’s with two witnesses—obvious, it’s Torah-level, “if he does not tell, then he shall bear his iniquity.” Meaning, what are you saying—that we’re talking about two witnesses who know testimony and don’t come testify? So if so, that’s obvious: it’s a Torah-level law, “if he does not tell, then he shall bear his iniquity.” And this is an interesting point. What does it mean, “obvious—it’s Torah-level: if he does not tell, then he shall bear his iniquity”? What’s obvious? What does Pnei Yehoshua say?
[Speaker D] It’s obvious that now he’s liable—that there’s a prohibition.
[Rabbi Michael Abraham] Right. There is, after all—after all, it’s not obvious that he has to pay. That’s not at all obvious. So what if “if he does not tell, then he shall bear his iniquity”? “If he does not tell, then he shall bear his iniquity” means that it’s not okay. Why in the world should he have to pay? Do I owe you something? I’m obligated to testify, and I didn’t fulfill my duty to testify. Did I cause you some damage? What does that have to do with it? Did I prevent you from profiting, or what damage did I cause you? I lost money because you didn’t come.
[Speaker B] No—what does the Torah say?
[Rabbi Michael Abraham] What does it say—
[Speaker B] “If he does not tell, then he shall bear his iniquity”? It doesn’t say that you have to pay. In the Torah, what it says is that if he does not tell, you have to come testify.
[Rabbi Michael Abraham] So if I didn’t come testify, I violated what is written in the Torah. Tell me: if the whole discussion is just about damage I caused, then why do I care whether the Torah says “if he does not tell, then he shall bear his iniquity” or whether it didn’t say it? Bottom line, your not coming to testify caused him a loss. When they bring in the prohibition here—when they say the Torah says “if he does not tell, then he shall bear his iniquity”—that means that your not coming to testify is wrong because it says “if he does not tell, then he shall bear his iniquity.” So from here it would seem that the discussion in the passage is not about payment but about the prohibition. Obvious—it’s Torah-level. Now one more comment: the Talmud also doesn’t say here—because if I remind you, in the previous cases the Talmud asked, “Obvious? He should even be liable in human courts.” Right? Here it doesn’t ask that. Meaning it’s clear to the Talmud that there is certainly no payment in human courts here. Right? That’s clear. The whole point is that the liability by the laws of Heaven—or the prohibition by the laws of Heaven, as Pnei Yehoshua comments—is obvious. That’s the Talmud’s question. Because in the previous places the Talmud asked not only whether it was obvious that there is liability by the laws of Heaven, but whether the liability is perhaps even in human courts. Here the Talmud doesn’t ask that. Meaning, for the Talmud it’s clear that liability in human courts won’t exist here. Right? That’s clear. The whole discussion is whether the liability by the laws of Heaven is a novelty or whether it is obvious. Why not? Why shouldn’t there be liability in human courts? Because it’s indirect causation. Because at most it’s indirect causation. Yes.
[Speaker B] At most—if at all—at most it’s refraining from returning a lost object.
[Rabbi Michael Abraham] Right. It’s even worse than indirect causation; we’ll get to that later. But it’s at most indirect causation—in other words, it certainly won’t be a case of more direct indirect damage. There is no liability in human courts here. That’s clear. The whole Talmudic discussion is whether it’s obvious that there is liability by the laws of Heaven or not. Okay? Beyond that, as I said before, even by the laws of Heaven it would seem from the Talmud that the discussion is not about payment by the laws of Heaven, like Meiri, but about the prohibition, like Pnei Yehoshua said. Though one could distinguish, and one could say that what is written, “if he does not tell, then he shall bear his iniquity,” maybe the Talmud understands that “he shall bear his iniquity” means to pay. Not “he shall bear his iniquity” meaning he’ll be punished—what punishment is there? There is no punishment for this; it’s a prohibition that doesn’t involve an action. You’ll tell me punishment in Gehinnom, I don’t know, or in the World to Come. Fine, maybe. But maybe the Talmud understands that “if he does not tell, then he shall bear his iniquity” means that if you don’t come testify, you’ll have to pay. Even though by the simple legal definition there certainly is no liability in human courts; rather, you’ll have to pay by the laws of Heaven, and then maybe this can also go with Meiri.
[Speaker D] “He shall bear his iniquity”—to say that this phrase hints to payment, I don’t know.
[Rabbi Michael Abraham] “If he does not tell, then he shall bear his iniquity”—meaning he will have to rectify the wrong, that’s the idea; the obligation to fix what you caused rests on you.
[Speaker B] Which one of the two exactly will be liable—that too.
[Rabbi Michael Abraham] Which one—there are two, though—
[Speaker B] —who did it. Here it’s not so simple. When two do it, each can say that it’s—
[Rabbi Michael Abraham] No, here the two act together; one alone can’t cause this kind of damage.
[Speaker B] And when two do it in a way where neither alone could have—then it’s some kind of half-half rule, I don’t know. You divide the money, yes. Like three people who sat on a bench.
[Rabbi Michael Abraham] Three people who sat—again, it depends what happens with each one separately.
[Speaker B] Each one separately wouldn’t have broken it, and all of them together—
[Rabbi Michael Abraham] And all of them sat down at once too, because otherwise the last one who sat is the one liable. Fine, in any event, according to Meiri, I think there’s no choice—I’m saying, really this is not the plain meaning of the verse, but according to Meiri there’s no choice except to say that what the verse means by “if he does not tell, then he shall bear his iniquity” is that if you don’t come testify, you have to pay—but by the laws of Heaven, because from the Talmud it looks like this is by the laws of Heaven and not in human courts. If that’s really so, then something very interesting comes out here. In any case, even according to Meiri, your obligation to pay by the laws of Heaven is not because of the law of more direct indirect damage. Because if it were from the law of more direct indirect damage, then you wouldn’t need the verse. In tort law, all such more direct indirect damage would have to be paid by the laws of Heaven. According to Meiri, the Talmud brings the verse because the verse says you have to pay—not only the general law that a person who causes more direct indirect damage has to pay by the laws of Heaven, but that what is written in the verse, “if he does not tell, then he shall bear his iniquity,” itself is interpreted as an obligation to pay if you don’t come testify. But if so, then according to Meiri this case is, in any event, exceptional compared to the previous cases. Because here, the obligation to pay is not from the general rule that anyone who causes more direct indirect damage must pay by the laws of Heaven; rather, there is some specific law newly taught by the Torah, and the resulting rule is that you’re actually not even in the category of more direct indirect damage—you’re not even that. Rather what? There is a special Torah law that you have to pay if you don’t come testify, by the laws of Heaven. According to Meiri—according to the simple reading it’s a prohibition; according to Meiri it’s an obligation to pay. And therefore I’m saying that according to Meiri, in any case—even if I somewhat rescue him from the standpoint of the Talmudic flow—there is still a case here that is exceptional within the rest of the baraita’s cases. Because even if we’re talking here about an obligation to pay, it is not an obligation to pay under the law of more direct indirect damage. And why really not? Why not? This ties into what I told you before. Because when what happens here is not really—let me put it in an exaggerated way. We know that in a place where the damage is certain, then according to some of the medieval authorities (Rishonim) that’s more direct indirect damage and not just indirect causation. For example, Nachmanides in his treatise on the law of more direct indirect damage—one of his criteria is whether it’s certain. If the damage will definitely happen, then it’s not just indirect causation, it’s more direct indirect damage. Okay? Now here, if it’s two witnesses, then the damage will definitely happen. Right? Two would have extracted the money; if there aren’t two, the money won’t come out. Even if just one didn’t come, and there’s only an oath, you won’t get the money in any case. Okay? So seemingly, under the laws of more direct indirect damage, he should have to pay.
[Speaker B] It’s not a hundred percent certain damage, because there’s always the possibility that other witnesses will come.
[Rabbi Michael Abraham] Yes, but assuming those two aren’t liars, there’s no reason other witnesses would come. The simple assumption is that if you have two witnesses, they aren’t liars.
[Speaker B] Rabbi said earlier that this isn’t even more direct indirect damage—it’s preventing rescue.
[Rabbi Michael Abraham] And now the rabbi is saying it’s more direct indirect damage.
[Speaker B] Maybe other witnesses would come that there was a loan? In that direction? Ah, okay, and so it turns out I caused you no damage at all.
[Speaker D] Okay, fine. Rabbi said earlier that it isn’t even more direct indirect damage—
[Speaker B] —it’s preventing rescue, and now the rabbi is saying it’s more direct indirect damage.
[Rabbi Michael Abraham] No, that’s what I want to prove. That’s what I want to prove. Because if there were no difference, as I said before, between preventing rescue and more direct indirect damage, then here there would be room to start discussing whether it’s more direct indirect damage, and then the Talmud really could have asked: then let him be liable in human courts too. But that doesn’t even enter the mind.
[Speaker B] Then they would have had to prove that there are no other witnesses. What?
[Rabbi Michael Abraham] Ah, that’s your problem. Fine, maybe we’ll manage to say it. They’ll establish it with an interpretive setup where such a situation exists. Okay?
[Speaker B] You have proof that there are no other witnesses, but you don’t have proof about the loan itself having existed. No, I do.
[Rabbi Michael Abraham] These two witnesses themselves say: only we saw it, there weren’t others.
[Speaker B] Ah, based on their own testimony itself? But if they’re testifying in that same testimony about the loan, then—
[Rabbi Michael Abraham] Then that’s already stated. No, they didn’t come testify, but when we ask them afterward, once we come to obligate them—when we catch them red-handed for not having come to testify—we ask them: tell me, were there other witnesses or not? Only us. So in that same testimony they recounted the event. Doesn’t matter—but they didn’t come.
[Speaker B] So then the damage is over.
[Rabbi Michael Abraham] No. Ah, he already knows about the loan. No, after all, how do you obligate them? You obligate them to pay. You obligate them to pay when you already know there was a loan. They admitted afterward, or I don’t know, something happened. Something happened, whatever it was.
[Speaker B] You need to establish it with an interpretive setup where the person—the debtor—disappeared, he’s not here.
[Rabbi Michael Abraham] Maybe, I don’t know. But something happened here such that we already know there was a loan, the witnesses still didn’t come testify, and therefore I obligate them—and then… tell me, were there other witnesses? Fine. Again, I’m saying, it’s not such a strong question. I’m only trying to sharpen the difficulty in order to prove what I said before: that in fact the Talmud isn’t raising any discussion here at all about liability to pay in human courts. Why? Not because of the indirect causation in it, but because after all, the one who caused you the damage is the borrower who didn’t pay. He caused you the damage. I, at most, could have saved you from this liar who doesn’t want to return your loan, and I didn’t save you. Something like that is not called indirect causation in torts. It’s not indirect causation and not more direct indirect damage and nothing. Therefore it may actually circle back and illuminate why, according to Meiri, you need the verse to say “if he does not tell, then he shall bear his iniquity.” According to Meiri, the intention is: he will pay the damage he caused. Why do you need that? There is a general rule that in torts indirect causation is payable by the laws of Heaven. No—it’s not the laws of indirect causation at all, so in any event this case is not indirect causation. In any event this case is not indirect causation, not more direct indirect damage, and nothing of the sort. It’s preventing rescue from loss. Okay? It’s preventing rescue—but the one who caused the loss to you was the borrower. The borrower who doesn’t pay caused you the loss, not the witness. The witness could have saved you and didn’t. Can you sue someone—someone walked by the river and my property is drowning in the sea. Okay? “The works of My hands are drowning in the sea.” Someone walks by the sea, and he has some kind of grabber, he can stretch out his hand and lift the object, save it for me, with no danger, no effort, no expense, nothing. He didn’t do it, he didn’t feel like it. Okay? He violated a prohibition of returning a lost object, “do not stand idly by your neighbor’s blood,” whatever you want—but he didn’t do it. Can I sue him by the laws of Heaven? Why in the world? That isn’t called indirect causation; it’s not even indirect causation. It’s preventing rescue, not causing a loss. The river caused my loss. The river caused me the loss. The person could have saved me and didn’t. Therefore that doesn’t belong at all to the topic of indirect causation and more direct indirect damage. That’s what I want to say. And if that’s so, then it’s even clearer why the verse needs to teach me that in such a case there is an obligation to pay by the laws of Heaven. Because you won’t get this from the regular laws of indirect causation. So in any event, whether according to Pnei Yehoshua or according to Meiri, it’s pretty clear that even if we’re talking here about an obligation to pay, it is not an obligation to pay for indirect causation. There is some exceptional case here. Okay? Okay. I would even say more than that. Let’s say an obligation to pay for indirect causation—what Meiri says about payment for indirect causation—that basically means an obligation of compensation. It all doesn’t come out in court, but essentially the claim against you is that you caused me damage. For some reason it was newly taught here that it doesn’t come out in court, but you caused me damage. Okay? Here that isn’t the grounds on which they’re claiming against you—not that you caused me damage. So it turns out that your payment is not that compensation at all. It’s a penalty; it’s not “money” in the plain sense. It comes to punish you. To impose consequences if you did such a thing. Of course, with penalties too, in the end when I pay the penalty, I pay it to the injured party—but the essence of a penalty payment is not compensation to the injured party; the essence of a penalty payment is punishment of the offender. Since you’re already paying money, pay it to the one who was injured. Meaning that maybe there’s even something more far-reaching here: even the character of the payment is different. It’s not at all a payment of compensation like we know in indirect causation, where one has to compensate by the laws of Heaven. Here it isn’t compensation at all; it’s punishment. Punishment for not having acted properly. Except that here the punishment is to compensate the defendant—to compensate for what happened. That’s how I think one can learn it according to Meiri. Okay. Again, afterward the Talmud returns and says: rather, with one. Okay? So the difficulty was that you can’t establish it with two, because then it is obvious that there is an obligation to pay, because after all the verse says “if he does not tell, then he shall bear his iniquity.” Or a prohibition according to Pnei Yehoshua, or “he shall bear his iniquity” means payment according to Meiri—so it’s obvious. The Talmud says: rather, with one. Yes? We’re talking about one witness who could have testified for one of the sides, didn’t come testify, and then what? Exempt in human courts and liable by the laws of Heaven. And again, according to Meiri, “liable by the laws of Heaven” means he has to pay. According to Pnei Yehoshua, “liable by the laws of Heaven” means he violated a prohibition. Okay? And again, we need to discuss according to each of them what happens in the case of one. Okay? So what happens with one, basically—if we say that we’re talking about a prohibition, then maybe it’s easier according to Pnei Yehoshua, because with one, the novelty is that even with one there is a prohibition. You would have thought that “if he does not tell, then he shall bear his iniquity” is only about two witnesses—so no, it’s also about one, at least in a place where the testimony of that one has some legal significance, because in other places it doesn’t. But anywhere there is legal significance, like creating an oath obligation, then here you violated a prohibition if you didn’t come testify. And notice: if I really understand it that way, then we don’t need to get into the question of what would have happened if he had come to testify. Because if he had come to testify, the other side could still swear and be exempt. Meaning, your money—in any case, maybe you would have gotten it and maybe not, but you can’t know. Right? Do I need to prove damage? The answer is no, because if this is about a prohibition—you know testimony? Come to court, tell the testimony. What happens after that—whether he swears or doesn’t swear, pays or doesn’t pay—what business is that of yours? You have a duty: “if he does not tell, then he shall bear his iniquity.” Come, come to court—that’s according to Pnei Yehoshua. Then one could say that the Talmud’s novelty is that even in the case of one witness there is a duty to come and testify, and if he didn’t come testify he violated a prohibition, without any connection to what the other side would have done. According to Meiri it’s more complicated. Because according to Meiri, the obligation of the one is an obligation to pay. The obligation of two—it’s obvious that they have to pay. But there too it’s clear, because he caused him a loss in the end; he didn’t get his money, so he has to pay. But with one, after all, it depends on what the defendant would do. Meaning, I am one witness testifying that he owes, and now the question is what he’ll do. If he swears, then still, if I didn’t come testify—if he would have sworn had I come testify—then my not coming to testify caused no loss at all. So what am I supposed to pay for? Okay? Who knows whether he would have sworn or not? And then we go back to the question: okay, but here there really is some possibility that he wouldn’t have sworn, and then he would have had to pay. Maybe for that possibility, you need to pay. But that really is a very big novelty. Meaning, not only is this not indirect causation; it is preventing rescue or preventing loss—and not just that, it’s even doubtful prevention of loss.
[Speaker B] Maybe you have to price it according to the risk, according to probabilistic rights, yes.
[Rabbi Michael Abraham] The risk that he would have sworn. I don’t know how you measure it, but the risk that maybe he would have sworn—he’s liable for that.
[Speaker B] But then with two witnesses too, you could obligate each one for the whole thing. If you claim that this is punitive compensation—that if you’re a witness and you didn’t testify, you owe the rate of the testimony. Meaning if it’s a hundred shekels, a hundred. Then if there are two such witnesses, does each one owe a hundred?
[Rabbi Michael Abraham] What, like conspiring witnesses, you mean? Yes. With conspiring witnesses they do divide it.
[Speaker B] Right, and with conspiring witnesses they divide it, right. So that would happen here too. Fine, but that can resolve it. In any case, you can use the same idea. To say that if there are two, then you have a partner in the liability, but if not, then true, it wasn’t certain. You’re not paying for the damage you caused; you’re only paying for what—no.
[Rabbi Michael Abraham] Then it’s not—
[Speaker B] —a payment.
[Rabbi Michael Abraham] So I’m saying: if this is Pnei Yehoshua, then there’s no problem, because it’s a prohibition. You violated a prohibition, because in the end even if he would have sworn, what does that have to do with it? The claim against you is not that he didn’t get the money, but that justice did not come to light.
[Speaker B] Then in that same vein, you can say it’s a fine, no?
[Rabbi Michael Abraham] So I’m saying—now that’s exactly what I’m saying. Now the question is what happens according to Meiri. According to Pnei Yehoshua it’s easier. According to Meiri, after all, we’re talking about an obligation to pay. And plainly, an obligation to pay is for a loss that I caused. I caused it indirectly, but I caused it. And here it’s not even clear that I caused a loss; it’s doubtful whether I caused a loss. I’m saying more than that: here it’s doubtful whether I merely failed to rescue from loss. Not that I caused the loss, but only that I didn’t save him. Even more remote. So even for that, according to Meiri, he has to pay by the laws of Heaven? Now if I say, like I said before, that the liability here is not because of the loss at all—even according to Meiri, the payment obligation is not because of the loss—it’s punishment, a kind of fine—then it’s easier. Then I can say what I said according to Pnei Yehoshua, and I’ll say it according to Meiri too. Just that according to Meiri the punishment is the payment, whereas according to Pnei Yehoshua the punishment is in Heaven, whatever exactly that means. But still, the idea according to Meiri in this case comes out like Pnei Yehoshua, and then there really is a verse that tells you: “if he does not tell, then he shall bear his iniquity”—even one witness, because there is legal significance here, because there is an oath obligation, you have to pay the money that he lost—not because of the loss you caused. That’s what I want to say, and it continues what I said before regarding the two witnesses: all along, the discussion here is not about a payment of compensation to the person who was harmed. Not even indirect compensation through indirect causation and all that. It’s not compensation at all. It’s preventing rescue. Preventing rescue is a payment that is punishment, a fine. So if that’s the case, the Talmud says that even with one who prevented doubtful rescue, they imposed the punishment on him, because this is basically punishment for “if he does not tell.” It has nothing to do with rescues and losses; it is the punishment for violating the prohibition of “if he does not tell.” If you violated the prohibition of “if he does not tell”—and that prohibition exists even for one witness, because in the end you should have come and generated an oath—if you didn’t come, there is a punishment on you. What is the punishment for “if he does not tell”? The Torah innovated that the punishment regarding “if he does not tell” is a payment penalty. Okay? Like the law of conspiring witnesses—there’s a dispute among the medieval authorities (Rishonim)—but like the law of conspiring witnesses: if they plotted and the money wasn’t extracted, still we obligate them to pay. After all, there there was no loss at all, so why obligate them to pay? They only plotted and didn’t do it; the ruling wasn’t issued based on them. Or it was issued but the money wasn’t extracted. So you see that once it’s punishment, the payment you pay is just the fixed amount—how much you have to pay in order to receive the punishment. Therefore here I’m no longer troubled by the question, wait, what happens if he would swear or not swear, all kinds of things like that. Okay. Later on the Talmud brings what the novelty is. Yes, we talked about the fact that the structure of the passage is that they discuss the four cases, and then later the Talmud discusses in each case what the novelty is. And regarding “one who knows testimony for his fellow and does not testify for him” too, the Talmud says: what would you have thought? You would say that when I would testify for him, he would have admitted? Perhaps he would have sworn falsely, and then even by the laws of Heaven he would not be liable. It therefore teaches us. We are dealing with one witness—that’s the conclusion. What’s the novelty with one witness? Here suddenly comes up the possibility that even with one witness this would be obvious. Why is it obvious with one witness? It’s not so clear why that should be obvious, but the Talmud explains that it’s not obvious because there is some possibility that he would indeed swear and not pay, and then I didn’t cause any loss. It therefore teaches us that I still have to pay. The question is what exactly “it teaches us”: does it teach us that even for doubtful loss one pays? Or does it teach us precisely what I said before—that this payment is not compensation for loss at all, and therefore I don’t care that there is a possibility he would have sworn and been exempt.
[Speaker B] It’s the same kind of “obvious” as the first question. There shouldn’t be a difference. Just like with two witnesses, so too with one witness—the same “obvious” that the Talmud said before. Why was it obvious with two witnesses? Meiri according to his reasoning, Pnei Yehoshua according to his reasoning—so here too they can—
[Rabbi Michael Abraham] No. With one witness, who says there is any “if he does not tell, then he shall bear his iniquity” at all? Why not? Who says there is?
[Speaker B] Does the Torah say that it’s only two witnesses?
[Rabbi Michael Abraham] Maybe, yes. In a moment we’ll see that there are medieval authorities (Rishonim) who write that.
[Speaker B] But plainly, no. That ought to be stated somewhere. If it just says “if he does not tell,” even if it’s phrased in the singular.
[Rabbi Michael Abraham] In the singular—the medieval authorities (Rishonim) already write here that whenever it says “and he is a witness, or saw, or heard,” even though the Talmud is written in the singular, it means two witnesses.
[Speaker B] Okay, you can say that, but to say this is something other than one witness is already going too far.
[Rabbi Michael Abraham] But to say it’s obvious?
[Speaker B] No, it’s obvious once it’s written in the Torah. It’s the same kind of obvious as with two witnesses. No, once it’s written in the Torah, it’s obvious that it applies to one witness too; there’s no novelty in that. In that itself there’s no novelty. Where do you want to go with this?
[Rabbi Michael Abraham] I don’t think so. I’m saying the Talmud could have answered that way, and it doesn’t answer that way.
[Speaker B] No, so I’m emphasizing that this is a continuation of the previous “obvious.” It’s like…
[Rabbi Michael Abraham] But it’s not really obvious,
[Speaker B] because there was room to distinguish between two and one witness. So that’s what the Talmud is saying now. That’s the only distinction. No, after all, it slipped away from the novelty. What, didn’t you say that? That’s what it says. The Talmud should have said that for one witness there is no “if he does not tell.” There is “if he does not tell.” The novelty is that there is “if he does not tell.” Yes, but why was there any basis at all to say that it doesn’t apply?
[Rabbi Michael Abraham] Because one witness does not extract money.
[Speaker B] That’s exactly what the Talmud says, because he can swear falsely. And if he swore falsely, then the one witness would not obligate him.
[Rabbi Michael Abraham] No, that’s talking about the loss. Right, but the Talmud needs the loss. What I said before was that the payment here is not compensation for loss. So why should I care whether there was a possibility he would swear or not swear? That’s not the discussion. The discussion is whether you violated the prohibition of “if he does not tell.”
[Speaker B] Regardless of the question of what would happen after you spoke. Right, the only reasoning for claiming that the prohibition of “if he does not tell” applies only to two and not to one is the distinction the Talmud gives—that with one witness there is the possibility…
[Rabbi Michael Abraham] No, it could be that the distinction is that one witness does not extract money.
[Speaker B] No, why? But if with one witness, if we were to decide as an axiom that nobody ever swears falsely, then the damage caused by one witness…
[Rabbi Michael Abraham] No, because one witness does not create a monetary obligation. Why? One witness obligates an oath.
[Speaker B] He would obligate an oath, but in the end he would swear. Ah, you’re saying that’s not damage, whereas with two it is damage.
[Rabbi Michael Abraham] Therefore it could be… I’m saying, it’s a possible obligation. And maybe only with two witnesses is there “if he does not tell, then he shall bear his iniquity.”
[Speaker B] But the Talmud says that’s not true.
[Rabbi Michael Abraham] Certainly if you’re talking about “and he shall bear his iniquity,” certainly when you explain that “he shall bear his iniquity” means the payment is a punishment, like I said in Meiri. A punishment is for a situation where I caused some definite loss. In a place where you didn’t cause a loss, fine, maybe it’s not okay, I don’t know exactly what, but who says that this too is included in “and he shall bear his iniquity”? The Talmud almost says that. And the Talmud does indeed need the question of this option that maybe he would swear falsely and not pay. And that’s an interesting question, because the Talmud here is only explaining the initial assumption. In the end, okay, and why is that initial assumption incorrect? Two possibilities: either you also pay for a doubtful prevention of loss, if this is prevention of loss, or indeed the payment is for the prohibition of “if he does not tell, then he shall bear his iniquity,” so why should I care whether loss would come out of it or not? The payment does not come to compensate for loss. That itself is what is being introduced here.
[Speaker B] Or it’s not considered doubtful, but that’s included in the first possibility. Yes, let’s try to move on. Now the question is why he has to pay if he didn’t testify.
[Rabbi Michael Abraham] The Talmud says that even if he had come to testify,
[Speaker B] it could be that the other one would have sworn falsely. But he still didn’t testify.
[Rabbi Michael Abraham] Why would he swear falsely? He testified. But if he would swear falsely, then I wouldn’t have lost anything. So why should I care that he didn’t testify? Why should he have to pay if he didn’t testify?
[Speaker D] They’re looking, looking, looking here for an explanation with the… they’re looking here.
[Rabbi Michael Abraham] No, the opposite—you want to extract money from him for a loss he caused you. Who says he caused you a loss?
[Speaker B] It could be that he would have sworn falsely even if
[Rabbi Michael Abraham] I had come to testify.
[Speaker B] if I had come
[Rabbi Michael Abraham] to testify, he wouldn’t have paid. So prove that… you’re trying to extract money from me, prove that I really caused you a loss.
[Speaker B] After all, it could be that even if I had come, the other guy would have sworn falsely and you still wouldn’t have gotten the money. So who says I caused you a loss? So they’re looking here for a plausible or implausible answer, why “if he does not tell” testimony—no, not answers. When you come to extract money from a person, it’s enough that there be even an option that he isn’t liable in order to shift the burden of proof onto you. That’s the reasoning, not just random. And it’s connected to what we talked about earlier. Underground you can always… Here we’re talking about someone who denied it anyway, meaning he’s a liar in any case. True, lying under oath is worse, but we’re talking here about someone who is a liar anyway. If it’s rare enough, then it’s not a claim. What do you mean why? Maybe it was already broken even without him.
[Rabbi Michael Abraham] Maybe
[Speaker B] it was already broken before.
[Rabbi Michael Abraham] Do we follow the majority in monetary cases? We don’t.
[Speaker B] We don’t follow the majority in monetary cases?
[Rabbi Michael Abraham] No, we don’t follow the majority in monetary cases.
[Speaker B] No, but we do in a case where it’s really a majority.
[Rabbi Michael Abraham] Fine, this is an example of a place where it’s not a majority and it’s not clear
[Speaker B] and it’s not plausible.
[Rabbi Michael Abraham] Okay, in any event, in the Talmud itself there really is room here to hesitate. On the one hand, the Talmud does go into the question whether loss will definitely occur here or not, which somewhat hints that the payment is in fact payment as compensation for damage I caused you indirectly. On the other hand, as I argued all along earlier, I don’t think it’s reasonable to interpret it that way here. And therefore it seems to me that what has to be said is that this itself is what is being introduced. You would have thought that this payment is payment for indirect damage, and then maybe here, since the damage is not definite, really he would not be obligated to pay. It teaches us that I don’t care that the damage is not definite, because this is not compensation for damage; it is punitive payment. Okay? Fine, now look in the Shulchan Arukh. What? Did someone say something from the Zoom people?
[Speaker F] We can hear. What? We can hear, yes. Ah,
[Rabbi Michael Abraham] someone said something, I just… Okay, fine.
[Speaker F] It’s a little choppy sometimes, but okay.
[Rabbi Michael Abraham] Actually I have some microphone—they once told me the microphone is good and it could be that… let’s connect my microphone, tell me if it improves.
[Speaker D] Now it’s becoming the default.
[Rabbi Michael Abraham] Can you hear me better now? Can you hear me better now, friends, the Zoom people?
[Speaker C] Yes, much better.
[Rabbi Michael Abraham] Yes? Ah, great, so if so we’ll work with that. Fine, now look in the Shulchan Arukh: “Anyone who knows testimony for his fellow and is fit to testify for him”—yes, page two in your packet—“and his fellow has benefit from his testimony, is obligated to testify if he is asked to testify for him.” That’s an addition that does not appear in our Talmud. If he asks you to come testify, you are obligated to testify. But here it says: “Anyone who knows testimony for his fellow, whether there is one witness with him or whether he is alone”—apparently that’s what is written in our Talmud, right? “If he does not tell, then he shall bear his iniquity” exists both if you are one witness and if there are two of you. “And if he suppresses his testimony, he is exempt under human law and liable under the law of Heaven.” Again an ambiguous expression. It’s not clear what is meant by “liable under the law of Heaven”—here, is this a prohibition, is it a payment? The Shakh throughout, look there in section 28, says that to him it’s obvious that this is a payment. But there are other commentators in which this is not clear. Gloss: “A single witness should testify only in a monetary matter where one person is brought to an oath, or in a matter of prohibition, to separate someone from prohibition”—a matter of prohibition and keeping him away from prohibition. “But if the prohibition has already been done, he should not testify, for he is then merely slandering his fellow.” This is what I mentioned earlier, that with one witness it is only when your testimony has a legal implication. And if you’re just coming and speaking slander and it has no legal implication, even if you’re right—that is, it’s not that you are lying, you are telling the truth—but the court cannot accept it because you are one witness, in such a case. So from the Shulchan Arukh it seems that the obligation to testify exists both with one witness and with two. The rule of “if he does not tell, then he shall bear his iniquity” was said—whoops, that one is falling back. Did you see? There’s some loose contact here, I think. I was on the screen there, my screen. Here, right? Wait, there’s some loose contact here. Whoops, whoops, yes, it’s somewhere there.
[Speaker D] Maybe it’s
[Rabbi Michael Abraham] You’re doing it because I touched here too. Try again. Whoops, there, nice. There’s probably some loose contact there.
[Speaker D] That’s it. It has weight on it.
[Rabbi Michael Abraham] I’m trying. The whole story, interesting. No, but that’s already an achievement. Meaning there really is some loose contact there. Fine, I’ll tell Nachum, he’ll have to deal with it, because we didn’t understand what was going on. On Nachum’s computer, by the way, it did work for some reason. I’m not clear why. Our screen here in front stutters sometimes, and now it suddenly started working. I’m telling the Zoom people who can’t see this.
[Speaker C] We stopped seeing you.
[Rabbi Michael Abraham] Ah, you stopped seeing us? Yes. Wait, wait. Before, when I put on my microphone, could you see?
[Speaker C] Yes, we could see, it’s just that the microphone improved a lot then. Even now it’s excellent.
[Rabbi Michael Abraham] Okay, so you know what, you can return that there to how it was, because it doesn’t help us anyway—they don’t see me. Their loss that they don’t see me, but still. No, lower it, lower that power strip down there that was down below, no, he put
[Speaker D] some weight there that bothered it.
[Rabbi Michael Abraham] Wait, my video disappeared. Fine. Can you see me now? Yes, now you can see me. For some reason the video here turned off. Okay. Fine. Let’s just take this out entirely, there’s no point at all, no need. Okay, the whole business is unnecessary,
[Speaker E] I’m not using it anyway. Fine.
[Rabbi Michael Abraham] Everything okay? Can you hear me? See me? Ah, wait, it turned off again.
[Speaker C] We can hear but not see.
[Rabbi Michael Abraham] Ah, here, now, now you can see. Now you only see me and not the class, because the camera is my computer’s camera and not the classroom camera. Okay. So in the Shulchan Arukh it says that there is an obligation to come and testify, and “if he does not tell, then he shall bear his iniquity” applies both to one witness and to two, right? But in a place where there is some legal implication—meaning one witness in monetary matters, where he obligates an oath, or something like that. But a legal implication, regardless of the question whether in the end there is loss, because even if one witness comes and obligates an oath, it could still be that the other one will swear and not pay, so it is doubtful whether loss was created here—but that doesn’t matter, there is an obligation to testify in any case. Maimonides also writes: “The witness is commanded to testify in court regarding any testimony he knows, whether testimony by which he would obligate his fellow, or testimony by which he would vindicate him, provided that he is asked to testify in monetary cases, as it is said: ‘And he is a witness, or has seen, or known—if he does not tell, then he shall bear his iniquity.’” Okay? Now what’s interesting here—today I’m not going to take a break in any case, I still don’t know how we’re going to do this on Zoom. I was taking breaks in the middle of the lesson because it’s too long, an hour and a half on Zoom, and now some of the group are on Zoom.
[Speaker B] You can do a break only for Zoom.
[Speaker D] Yes,
[Rabbi Michael Abraham] Right, I don’t know what to do with that, but today there were all kinds of disruptions so allow me to skip it; we’ll decide on a policy as we go on. “If he does not tell”—with two, since the verse is particular about telling, where is this written?
[Speaker D] Is that on our page?
[Rabbi Michael Abraham] On page three. The view of Rashi, the heading “The view of Rashi.” Yes. “‘If he does not tell’—with two, since the verse is particular about the telling, it implies that if they do tell, this one becomes liable for money; and moreover we hold that every place the Torah says ‘witness,’ it means two witnesses, unless Scripture specifies one, as it says: ‘One witness shall not rise up against a man.’” That’s what I mentioned. As is written, true, the Torah says “witness,” but everywhere that it says “witness” it really means two witnesses. So Rashi tells me that “if he does not tell, then he shall bear his iniquity” speaks about two and not about one. So what is the conclusion? Let’s look at the conclusion—or maybe before the conclusion let me go back up to the Talmud itself so you can see the wording of the Talmud. The wording of the Talmud on page one, yes, at the beginning of the packet: “And one who knows testimony for his fellow and does not testify for him—what are we dealing with? If we say with two, obvious! It is from the Torah, as it says: ‘If he does not tell, then he shall bear his iniquity.’” So from here there was room to say that with two it is obvious because with two it is a Torah law that “if he does not tell, then he shall bear his iniquity.” And with one? With one it is only rabbinic. And that is the novelty. Therefore what is written afterward, “rather with one”—with one it is not obvious. Why with one is it not obvious? Because with one there is no Torah-level obligation of “if he does not tell, then he shall bear his iniquity,” and nevertheless there is a novelty here that he must pay, because this is rabbinic “if he does not tell, then he shall bear his iniquity,” what has to be introduced is the rabbinic law that even with one there is “if he does not tell, then he shall bear his iniquity” on the rabbinic level. That’s how some learned Rashi, because Rashi here writes, as we just read—I’m going back to page three—Rashi writes here: “‘If he does not tell’—with two, since the verse is particular about telling.” After all, “if he does not tell” implies that there is telling here. What is “telling”? “Telling” is something which, when done, creates monetary liability; that exists with two and not with one. So from the verse itself we see that the rule of “if he does not tell, then he shall bear his iniquity” was said only about two witnesses, not one. Okay, and why is “if he does not tell” written in the singular? Fine, because “witness” everywhere means two witnesses, that’s what Rashi says here. And then according to this, what happens with one witness—so what is the conclusion? “Rather with one, where he obligates him to an oath, and he is liable under the law of Heaven, for if he had testified he would have obligated him to an oath, and perhaps he would not have sworn falsely and would have paid.” What is Rashi saying here? So why with one is it not obvious? Because with one it could be that he would swear falsely and in fact no loss would have been created here. This follows the flow of the Talmud; Rashi relies on the continuation of the Talmud. After all, later in the sugya we already saw this, that the Talmud itself explains what the novelty is with one witness: because with one witness there was room to exempt him, since it could be that the second person would swear and not pay, and then the fact that I did not come to testify did not cause you any loss. Right? Therefore Rashi says that one witness “obligates him to an oath, and he is liable under the law of Heaven”—why is he liable? Since if he had testified he would have obligated him to an oath, and perhaps he would not have sworn falsely and would have paid. Here it is already written not like what I said earlier. Rashi explains that the novelty—why with one witness too he really is obligated to pay, or liable under the law of Heaven, however you want to read it—is because of this possibility that the other person would not have sworn falsely and would have paid. Right? Meaning, what this witness who did not come to testify pays is because of the loss he caused, not because of the prohibition of not saying what he had to say.
[Speaker B] Maybe it’s because of the prohibition, on condition that there is loss—that’s probably what Rashi means.
[Rabbi Michael Abraham] What do you mean?
[Speaker B] The prohibition creates the liability, but there is a condition: if you caused no loss, you’re exempt.
[Rabbi Michael Abraham] But why, then, does he make it depend on “perhaps he would not have sworn falsely and would have paid”?
[Speaker B] Right. Because if in any case he wouldn’t have caused any loss.
[Rabbi Michael Abraham] But still, I obligated an oath. Right, and I didn’t impose the oath—I was supposed to impose an oath and didn’t. Let’s say he always swears falsely and doesn’t
[Speaker B] pay—if that doesn’t cause financial damage, then that’s a reason to exempt. That’s what I’m saying.
[Rabbi Michael Abraham] So that means there really is liability here for the financial damage.
[Speaker B] No, it doesn’t necessarily mean that. It could just be a condition. They imposed on you a penalty to give compensation only where damage exists, and fine. According to what I…
[Rabbi Michael Abraham] Let’s put it this way: what I explained earlier definitely does not fit Rashi,
[Speaker B] the question is
[Rabbi Michael Abraham] how much it doesn’t fit Rashi. Because what I said earlier was that what you pay is simply a punishment for “if he does not tell.” A punishment for “if he does not tell.” Now, even if the person would always swear falsely and therefore you would never suffer any loss, okay? Whether you came to testify or didn’t come to testify, it makes no difference—since I was supposed to come and obligate you to an oath and I didn’t come, I fall under the category of “if he does not tell,” and therefore I should have to pay. I shouldn’t have needed what Rashi says, to make it depend on the option that maybe he would not swear falsely and would pay.
[Speaker B] Because Rashi understood it as obvious. I’m following the move you said before, I’m just adding that there’s a condition. It’s true that you’re liable for not testifying, but
[Rabbi Michael Abraham] what forces Rashi to say that?
[Speaker B] Nothing—say Rashi inserts it. It’s a pretty simple reasoning. Not at all, because what—otherwise why the amount that you pay?
[Rabbi Michael Abraham] Because this is not between man and man, it’s between man and God. You are obligated to come testify if you know testimony.
[Speaker B] So where did this amount come from? Why one hundred shekels—maybe fifty shekels?
[Rabbi Michael Abraham] Where does that amount come from in the case of conspiring witnesses?
[Speaker B] Right, because there too, with conspiring witnesses, the basis of the liability is the damage they caused, even though it didn’t actually get caused in the end. Fine, no problem, but it’s clear that it’s against—
[Rabbi Michael Abraham] No, but there too there’s no option that it gets caused—what do you mean?
[Speaker B] With conspiring witnesses there is an option. What do you mean there is an option? Here there is no option.
[Rabbi Michael Abraham] Here the fact that they—on the option that the damage might be caused, they do not pay.
[Speaker B] Right, so what? Not relevant. No, if the damage had really materialized, right, but the basis of liability is the possibility. If the witnesses had testified with testimony from which no financial damage could result,
[Rabbi Michael Abraham] then they wouldn’t be liable even as conspiring witnesses.
[Speaker B] Obviously, because the testimony is not testimony connected to money. But here the testimony is about money in any case; the fact that he would always swear is not interesting. So that means it’s not about money. It means that when I came I changed nothing monetary, I did not change the financial situation here; my testimony has no weight regarding the financial relationship.
[Rabbi Michael Abraham] But it has weight regarding obligating an oath. That doesn’t matter. Why? The prohibition of “if he does not tell” is because I need to come for the oath; I’m not interested in the money.
[Speaker B] Fine, then pay zero shekels, because that’s the rate.
[Rabbi Michael Abraham] No, the rate is the amount of the claim.
[Speaker B] The amount of the claim is not relevant here, because I did not testify regarding the claim.
[Rabbi Michael Abraham] Of course you testified regarding the claim. No, I testified regarding the claim, only I obligate you to an oath. I’m asking again: you could say that, but what forces Rashi?
[Speaker B] What do you mean? You can divide it up; I think it’s very strong reasoning. Divide it into two things if you’re going with one claim regarding the oath.
[Rabbi Michael Abraham] No, it’s not two things. I testify about the money, not about the oath. I testify that he owes him money; he becomes obligated to an oath as a result of my testimony. My testimony was about the money, not about the oath.
[Speaker B] Your testimony is about—well, yes, your testimony is about the money in the sense that this is the subject of the testimony, but your testimony doesn’t obligate or lose money, and therefore it belongs to another category.
[Rabbi Michael Abraham] I’m not—again, I’m saying again: if the point, if the starting point, is that the payment here is punitive payment for an offense, then I don’t see what forced—it’s possible to say what Rashi says, but I don’t see what forced Rashi to say it. If Rashi found himself compelled to insert this, I think that means Rashi apparently understands that there is here, after all, liability to pay as compensation, for the damage that I caused, and therefore Rashi had to show that there is here an option that real damage was in fact caused. True, it’s only an option.
[Speaker B] But in my view that’s simple reasoning in any case. How can it be that with no damage in the world whatsoever, just—this is simply a reasoning—
[Rabbi Michael Abraham] obvious, on what basis should we obligate him?
[Speaker B] Because it’s not for damage. In any event the payment is not for damage. With conspiring witnesses is it not for damage?
[Rabbi Michael Abraham] It is not for
[Speaker B] damage, but its basis is the matter that he came to steal, to take money.
[Rabbi Michael Abraham] No, its basis is that I did not fulfill my duty to come
[Speaker B] and testify to the testimony that I know.
[Rabbi Michael Abraham] If it were really purely only about that, then there would be
[Speaker B] some fixed sum or something. No, the amount is the amount of the claim. No, that’s a novelty of conspiring witnesses, something exceptional. And even with conspiring witnesses it starts from the fact that there was a possibility the damage could materialize. Here nothing—there’s no possibility of damage at all. No, I’m saying where there is a possibility. Conspiring witnesses comes from the fact that it—yes, but that’s the opposite; with Rashi it starts from that at least, not just detached.
[Rabbi Michael Abraham] Okay, maybe. I don’t think so. I think it’s strange that Rashi finds himself compelled to insert this option when you don’t need to get to it. Therefore it sounds a bit like Rashi really does understand this as compensation for the damage caused. Now again, in any event Rashi too will have to admit that there is here a novelty of the Torah in “if he does not tell, then he shall bear his iniquity,” because under the ordinary laws of indirect causation it is not possible to obligate payment here. That I think in any case has to be true. Rashi just claims that the Torah’s novelty is compensation for the damage that could have been caused here, and therefore Rashi says there had to be such a possibility that the damage would in fact occur. Okay? I don’t think Rashi would say here that this is liability as compensation for damage caused indirectly like the other cases. In any case I think that is not an option here. Fine, so I don’t know, because in principle I could also have written very differently from Rashi. I would say: once your actions have an implication—not a financial implication, a legal implication—you obligate an oath, so now I don’t enter at all into the question whether this obligation of oath can materialize in money or cannot materialize in money. You did not come, you caused a distortion of justice, because in principle he is entitled to have an oath imposed on the defendant. True, he would swear and be exempt, but I am entitled to an oath. You caused a distortion of justice. I did not get the oath that is due me, and for that you deserve “then he shall bear his iniquity.”
[Speaker B] What does it mean, “an oath is due”? No, that wording, “an oath is due,” is only because the oath potentially could cause the defendant to admit. Without that, what does it help me that he swears? Does it give me anything?
[Rabbi Michael Abraham] What will the guardian’s oath give you? The guardian’s oath is clearly something the guardian is obligated to swear. No, he owes me the oath.
[Speaker B] There it is explicitly written that he owes me the oath. Why does he owe me the oath? Because the oath will cause me to believe him. Okay, but here we are working from the assumption that there is no possibility that he will admit.
[Rabbi Michael Abraham] But I want him to swear. Why? Because it can deter him.
[Speaker B] But it still won’t change anything for me. What, just like that?
[Rabbi Michael Abraham] What do you mean it won’t change anything for me? It could be that he won’t swear falsely. There is such an option. I want pressure to enter here. But although in the end he did swear. But despite that—ah, you’re saying that’s why Rashi inserted the option. Okay, maybe.
[Speaker B] Because in this oath I have nothing, just nothing.
[Rabbi Michael Abraham] No, again the question is: why do I need to have anything? There is a law here. The law is that an oath is required here. And that law was not fulfilled. And it’s not about me at all.
[Speaker B] It’s an oath obligation like he is obligated—so then he didn’t eat matzah. What does that have to do with me? Let him pay a penalty. Let him pay a penalty to the court.
[Rabbi Michael Abraham] What does it have to do with me? No, every penalty is like that. Every penalty is like that. You pay punitive payment, only the payment goes to the injured party. To whom should it go?
[Speaker B] Throw it into the sea? I wasn’t harmed by the fact that he didn’t swear.
[Rabbi Michael Abraham] No, again.
[Speaker B] I was harmed by a completely different story. I was harmed by the fact that he doesn’t pay me the money. By the fact that he didn’t swear, I’m not the victim of the offense. Doesn’t matter. So what? Therefore, therefore here, if there is
[Rabbi Michael Abraham] a penalty, he shouldn’t have to pay me. Even someone who didn’t lose gets a penalty paid to him,
[Speaker B] provided that he is somehow the one harmed by the offense.
[Rabbi Michael Abraham] What does “harmed by the offense” mean? If I don’t owe him compensation, then he wasn’t really harmed by the offense. In all penalties it’s like that. In penalties I don’t owe him the money.
[Speaker B] It’s not compensation. Why? A penalty you don’t owe. But if his ox gored me, I lost because of it.
[Rabbi Michael Abraham] What do you mean you lost? But I don’t owe you. This payment is not compensatory payment.
[Speaker B] Yes, but I can see how I was harmed by the fact that you behaved badly.
[Rabbi Michael Abraham] So what? But why do I have to pay you the money?
[Speaker B] No, that I understand. You don’t have to. It’s a penalty.
[Rabbi Michael Abraham] And it still goes to you.
[Speaker B] Fine. But that makes sense, because I understand why I can receive it, because I was harmed by his bad act. True, that didn’t create a monetary obligation, that’s fine. Here I wasn’t harmed. His bad act now was that he didn’t swear. That didn’t cause me…
[Rabbi Michael Abraham] Obviously. In the end, though, the person who lost in this situation is you. Not from his act.
[Speaker B] Not from the fact that he didn’t swear.
[Rabbi Michael Abraham] Doesn’t matter. Doesn’t matter. But you are the person who lost in this situation. No, we’re not shifting it onto him; rather, if he is already paying a penalty and I ask myself to whom should he pay, let him pay the one who lost in the situation. Exactly like the idea of ordinary penalties.
[Speaker B] In this specific situation?
[Rabbi Michael Abraham] The one who lost because he didn’t swear? No, the one who lost from the case.
[Speaker B] So just smear it over the whole story?
[Rabbi Michael Abraham] No, that really is the logic of penalties. That’s the ordinary logic of penalties generally. Fine, okay. So look here, yes—for example, someone who does not return his fellow’s lost object, does he have to pay him under the law of Heaven?
[Speaker D] Again, someone who…
[Rabbi Michael Abraham] does not return his fellow’s lost object. No, right. Not plausible. In Rashi too it’s fairly clear. You can’t say here that this payment is compensation, meaning it’s not relevant. Look, I’m saying these things because look at the Netivot. The Netivot says as follows. And maybe before that, before the Netivot. What did we actually see? In Rashi we saw that “if he does not tell, then he shall bear his iniquity” is only when your testimony has financial significance. In other words, with two witnesses. And afterward Rashi explains what happens with one witness. After all, in the conclusion, this is the initial assumption that with one witness he really would be exempt, but in the conclusion with one witness too he pays. In our Talmud we’re dealing with one witness—that’s where there is a novelty. Why does he pay? One can say it in two ways. Some learned in Rashi that with one witness this is a rabbinic prohibition. There is a rabbinic obligation of “if he does not tell,” and that is what is introduced here. But still what Rashi said above—that “if he does not tell” is only with two witnesses—remains true even in the conclusion, and what is introduced here is in rabbinic law. I think that does not have to be so; rather what is introduced here is that even with one witness there is a Torah-level “if he does not tell.” You would have thought that this is only with two witnesses who certainly cause loss; it teaches us that this is also with one witness. Everything Rashi explained above, that the “telling” over which one transgresses “if he does not tell” is only telling through which money is extracted—he came to explain the question. The question was, after all, “with two it is from the Torah, so it’s obvious.” So Rashi says why—because there they understood that “telling” means only the telling of two. The “it teaches us” at the end continues and says that with one too there is such a thing. And indeed in Maimonides and the Shulchan Arukh it seems from the plain wording that the obligation to come and testify exists both with one witness and with two, and they do not distinguish that this is rabbinic and that is Torah-level. Right? The Shulchan Arukh doesn’t really distinguish between Torah and rabbinic because it doesn’t deal with punishments and things like that, but Maimonides certainly should have said that this is rabbinic and that is Torah-level. Maimonides does not distinguish. He says there is an obligation to testify whether he is one witness or whether there are two. Right? So it appears there is a full obligation to testify. So what does the Talmud mean when it says “with two it is from the Torah”? That is the question. But after they taught us that even with one there is an obligation to satisfy Heaven, it was introduced that “if he does not tell, then he shall bear his iniquity” was said also about one witness and not only about two. That itself is what was introduced. Because look at the Netivot that I sent you here on the page—that’s page four. At the top of page four in the packet: “Alone, and he does not transgress ‘if he does not tell’”—you see?—“only rabbinically is he obligated. And similarly with separate testimony, the first is not obligated by Torah law since he does not know whether there is a court there. But after one witness testified and the second knows to testify, he is obligated by Torah law. And see Be’urim section 1 paragraph 1, and here in Be’urim paragraph 1 he expands more and also brings that the Tumim learns this way. Look at the beginning at least, let’s see. ‘Anyone who knows testimony for his fellow’—in Bava Kamma 56 it is explained that one witness does not transgress by Torah law, only rabbinically.” That’s how he learns the Talmud; he says “it is explained.” What is explained? What “explained”? Meaning, he read the Talmud’s “with two” apparently in such a way that only on the Torah level—when two testify and money is extracted on that basis—was it said “if he does not tell, then he shall bear his iniquity,” and “that is Torah law,” that’s what the Talmud means by “Torah law.” And “it teaches us—rather with one” means that with one, the claim remains that with one there is no Torah-level “if he does not tell,” and the novelty is that rabbinically they still obligate even one witness who did not come to testify to pay.
[Speaker D] That fits the language of the Talmud better, doesn’t it? What? It fits the language of the Talmud better, because with two, “he shall bear his iniquity”; “rather with one”—“rather with one” means that we’re no longer going back to “he shall bear his iniquity.”
[Rabbi Michael Abraham] No, the question was that with two it’s obvious. Why? Why is it obvious? Because there it’s clear, after all, that if they don’t say it—whereas with one it’s not obvious because maybe no money will come out. It teaches us that true, it’s not obvious, but even with one there is “if he does not tell, then he shall bear his iniquity.” Everything Rashi infers there, that “telling” means specifically the telling of two and so on, he is explaining the initial assumption. The Netivot apparently read it as a final explanation. Meaning that’s how he learns the verse. And then even in the conclusion it didn’t change. And he says it as something simple: that’s what the Talmud says. And what is “that’s what the Talmud says”? Maimonides and the Shulchan Arukh plainly imply not like that. I don’t see any necessity to say it in the Talmud itself either. Okay? More than that, I think I’d even say more than that. There’s a Talmud in the second chapter, 25a, about “dayyo” with Rabbi Tarfon there, concerning the ox in the injured party’s courtyard. So the Talmud says: “But concerning this ‘dayyo,’ how can the Rabbis disagree with Rabbi Tarfon—after all, ‘dayyo’ is from the Torah?” Now what does “from the Torah” mean there? “From the Torah” there means it is written in the Torah: “If her father had but spit in her face, should she not be ashamed seven days?” We learn from the verse itself, because all the hermeneutical principles, the thirteen interpretive principles, are not written in the Torah; that’s an oral tradition. The term gezerah shavah—the rule of gezerah shavah—is not written in the Torah. Kal va-chomer is written.
[Speaker D] Wait, one second.
[Rabbi Michael Abraham] But the rule, the principle of general and particular, is not written in the Torah. We expound verses in the Torah by means of the principle of general and particular. Now kal va-chomer and dayyo are exceptions, because kal va-chomer and dayyo—the very rule of inference itself—is written in the Torah. Okay? And when the Talmud says there, “But dayyo is from the Torah,” so how does Rabbi Tarfon not accept it—what, if it were rabbinic then Rabbi Tarfon could disagree? What difference does it make to me if it’s Torah-level or not Torah-level? There the term “from the Torah” appears in the sense of “appears in the Torah,” not in the sense of legal status as Torah law. And therefore here too it seems to me that when they say “with two it is obvious, after all it is from the Torah,” what does “from the Torah” mean? This is what is written in the Torah, because it says “if he does not tell, then he shall bear his iniquity.” But after we say—it doesn’t mean that two is Torah-level and one is rabbinic. Rather, it is explicit in the Torah; that can’t be disputed, that’s why it’s obvious. With one it’s not explicit in the Torah, and then that too is Torah-level because the Torah says “telling.”
[Speaker B] I know, that was before the term “Torah-level” became what it is.
[Rabbi Michael Abraham] That’s another question, yes, there’s a long discussion among scholars.
[Speaker B] No, it’s obvious that it crystallized at some stage; it wasn’t always “Torah-level.” I see that clearly in the Talmud.
[Rabbi Michael Abraham] I’m not entirely sure. Gilat wrote about this, and also—what’s his name—there was a book published in ’66 in Tel Aviv, a thin one, Studies in the Talmud something, I forgot his name.
[Speaker B] Yes, now I remember, I know that thesis. That’s not what I meant; they distinguish different layers within the Talmud itself, yes. No, I meant that today this term certainly has more weight than it used to.
[Rabbi Michael Abraham] Fine, obviously it underwent conceptualization and sharpening, yes, but they claim it’s an invention, that it was created at some stage.
[Speaker B] Yes, no, not that far.
[Rabbi Michael Abraham] Fine, in any case, that’s what the Netivot says, both in Be’urim paragraph 1 and in Chiddushim paragraph 4. And the practical implication—look at the line, the second line in Be’urim, yes? “And the practical implication is for someone who swore that he will not testify. In a place where one is obligated by Torah law, the oath does not take effect, for one cannot swear to nullify a commandment; but rabbinically it does take effect.” The source is the Tumim. The Tumim there at the beginning of section 28 brings this discussion: what happens if someone swore that he won’t go testify for his fellow. And then he says: since he is one witness, the obligation to testify is only rabbinic, so his oath takes effect. And the Tumim and the Netivot learn in our sugya that even in the conclusion, with one witness there is no Torah-level obligation to testify, only rabbinic, and the practical implication is that an oath indeed takes effect on that. I think that is not the plain meaning of the Talmud. It’s not necessary in the Talmud—let’s say maybe one could say it in the Talmud, but it isn’t necessary. In Maimonides and the Shulchan Arukh it really does not seem that way. In Rashi it is really not true that this is precise. You can learn it that way, but it is really not necessary, so I’m very doubtful how correct this conclusion is. Now Tosafot, on the opening word “obvious.” That’s on page four, the explanation of Tosafot, you see? “Obvious—‘if he does not tell,’ etc. And if you say, that is only when he transgressed his oath, as it is written, ‘and hears the voice of adjuration.’” After all, “if he does not tell, then he shall bear his iniquity” is speaking about the offering for an oath concerning testimony—someone who swore to his fellow that he does not know testimony for him, and then it turns out he lied; he simply wanted to evade coming to testify, and for that he is liable to bring the offering for an oath concerning testimony. So in such a case, Tosafot says, if so, the situation of “if he does not tell, then he shall bear his iniquity” in its plain sense speaks only about a case where the witness not only did not come testify, but swore that he does not know the testimony and therefore also did not come testify. What happens with a witness who simply did not come testify? He didn’t swear to the other person that he doesn’t know the testimony; he just didn’t come testify. Such a person does not have liability for the offering for an oath concerning testimony. Okay? It could be that there would also be no transgression here of bearing iniquity, but only in a place where he swore that he doesn’t know the testimony. From where does the Talmud know that in every situation where you don’t come testify, there is an obligation to testify and bearing of iniquity? Maybe it speaks only in situations where there is the offering for an oath concerning testimony—only when you swear?
[Speaker B] Yes, and according to the Shulchan Arukh and Maimonides they added a condition that he asks him. I understand the reasoning, but where is the source for that?
[Rabbi Michael Abraham] I don’t remember at the moment. We need to look there. I think there is some source for it in the Talmud somewhere, it seems to me.
[Speaker B] Because there’s a problematic prohibition here, since it’s not clear at what moment you transgress it. Everybody has not testified before he testified.
[Rabbi Michael Abraham] The question is, what do you mean? If the court finished and ruled and you didn’t appear?
[Speaker B] Then at that moment he’s liable. Fine, but what do you mean, it wasn’t in my hands, I didn’t manage to arrive.
[Rabbi Michael Abraham] No, if you didn’t manage, then you’re under compulsion, that’s not important. But the determining moment is when the court rules. The discussion ended and you didn’t come.
[Speaker B] No, apparently I don’t know—even after the court rules, if testimony arrives, can’t they reopen it? I’m not sure they can’t. Testimony they didn’t hear.
[Rabbi Michael Abraham] Disrespect to the court—that’s a different discussion.
[Speaker B] Depends, but there are cases where there’s no issue of disrespect to the court, so what’s the problem? I’ll come tomorrow.
[Rabbi Michael Abraham] Fine, but still you didn’t come. It could be that you can fix it.
[Speaker B] So what, that it doesn’t help at all—meaning that you can always…
[Rabbi Michael Abraham] No, it’s not a prohibition transformed into a positive commandment, because the Torah itself doesn’t have a positive commandment to come testify if you didn’t testify. But still it could be that you can fix it afterward. It’s like circumcision, Maimonides and Ra’avad there. Every day that you didn’t circumcise, you transgress karet, right? You can still circumcise afterward.
[Speaker B] So that doesn’t really fix it—there it doesn’t really fix it.
[Rabbi Michael Abraham] Yes, the question is exactly how to understand Maimonides there on this matter. How do you become liable to karet for the earlier days when in the end you did circumcise after a few days, let’s say, or whatever. It’s not simple in Maimonides. It could be that it does fix it—fixes it and somehow exempts him from the karet—but if he did not circumcise, then the karet already began from the first day.
[Speaker B] But at least you transgressed a prohibition; that at least you didn’t fix. The days that you didn’t circumcise are certainly a prohibition. It could be that there is no karet because there’s a problem, you can’t…
[Rabbi Michael Abraham] What is the prohibition here? It could be that it’s only “the diligent perform commandments early,” or something like that—meaning, only the date… A person who gets circumcised at age eighty? The commandment is to circumcise.
[Speaker B] Only “the diligent perform commandments early” is the issue.
[Rabbi Michael Abraham] The commandment is to circumcise. It could be that you’re supposed to do everything as early as you can, but fine, that’s a separate issue.
[Speaker B] A lot of people would prefer to be circumcised before they die, if that’s really the case.
[Rabbi Michael Abraham] Now then, that’s Tosafot’s question, and really it comes out that even with two witnesses—not only with one witness—there’s no real obviousness here at all. In truth, what the Talmud said, that it’s obvious, it’s not true that it’s obvious. So Tosafot says: “One can say that this is what the verse means: when he transgresses in a matter such that if he did not tell, he would bear sin, then he brings the offering for an oath; but even without an oath there is bearing of sin, as is proven in the Mishnah regarding a single witness in monetary law.” Meaning, Tosafot says that apparently the Talmud read the Torah this way: “If he does not tell, then he shall bear his sin”—that means, when is he liable for the offering for the oath? When, even if there had been no oath, there would still be bearing of sin in the fact that you didn’t come to testify. So when there is also an oath, then you’re liable for the offering of the oath of testimony. So it comes out that bearing of sin exists even when you did not swear. And on the contrary, that’s the basic law. The oath-offering is only an addition: if you also swore, then there is also an offering. But the bearing of sin is not dependent on the offering. And his proof is from the case of a single witness in monetary law, where the Talmudic Mishnah there says—look at the bottom of the page—“How do they admonish the witnesses,” and so on, wait, “And perhaps…”
[Speaker D] “You will say in the end,” and so on.
[Rabbi Michael Abraham] Yes. “And perhaps you will say: what is this trouble to us? Has it not already been said: ‘And he is a witness, or he saw, or he knew—if he does not tell, then he shall bear…’ and so on. And perhaps you will say: why should we be liable for this man’s blood? Has it not already been said: ‘When the wicked perish, there is song’?” And you see here that from “if he does not tell, then he shall bear his sin,” there is an obligation upon you to come and testify—not because you swore. It’s not contingent on an oath. So that’s fairly clear. There’s just one interesting point here: what seems to come out from this is, apparently—again—that the offering for the oath of testimony, and in general also the oath regarding a deposit, that can be discussed too and so on—the offering for the oath of testimony, the question is what exactly it comes for. Does it come for the oath? Or does it come for the lie, for the false statement that you said you don’t know the testimony? Or maybe even for the fact that you didn’t come to testify. But the fact that you didn’t come to testify by itself is not enough to obligate an offering; if you also swore, then you’re also liable for an offering. But the offering comes for the fact that you didn’t come, not for the fact that you swore. Regarding the offering for the oath about a deposit, there’s an explicit discussion about this among the later authorities (Acharonim). There, the offering is basically a guilt-offering for theft. So when you swear that you do not have the other person’s money in your possession, and then it turns out that you lied, you bring the guilt-offering. The question is whether that guilt-offering comes for the fact that you swore falsely, or whether the offering is called a guilt-offering for theft because you are guilty of theft. It’s just that the kind of theft sufficient to obligate a guilt-offering is only theft accompanied by an oath. Now it could be that what comes out here is the same thing in this Tosafot as well: that the offering for the oath of testimony comes for the fact that you did not come to testify. The prohibition exists in any case. You become liable for an offering only when you anchor your failure to appear with an oath—when you protect yourself, so that the other person can’t take you to religious court. By the way, that also answers your question a bit.
[Speaker B] It could be that that’s the point—here, that’s the prohibition.
[Rabbi Michael Abraham] Yes, the line from which onward it’s already clear that you transgressed a prohibition. Until then, who knows—maybe he’ll still show up.
[Speaker B] Exactly, that’s the point that…
[Rabbi Michael Abraham] Even so, regarding the prohibition, Tosafot shows that it’s not like that. Because regarding the prohibition, there is a prohibition even without an oath, and then the question still remains: so when do you transgress the prohibition?
[Speaker B] No, but until then it’s a prohibition that could still be reversible—you can neutralize it, uproot it retroactively. You can’t impose anything yet. It’s like being liable for “do not steal”—when are you liable? As long as I can return it.
[Rabbi Michael Abraham] There is bearing of sin.
[Speaker B] Yes, but that bearing of sin is conditional—it’s like a suspended sentence. If I pay the money or testify, then everything is erased, and retroactively it becomes clear that there was no bearing of sin, because I uprooted the prohibition from the outset. But if I swore, then no—
[Rabbi Michael Abraham] Like “he nullified it” and “he did not nullify it,” something like that. I don’t know if… It’s interesting.
[Speaker B] Because there’s no “if he does not tell,” what? I don’t think there’s room here for hair-splitting.
[Rabbi Michael Abraham] After the verdict, I think simple reasoning says that that’s when you transgressed the prohibition. If even after that you can still come and repair it, then you’re a penitent. But I think if I had to draw a line for when you transgressed the prohibition, it’s at the verdict. At that point the discussion ended, and you didn’t take part in it. Fine.
[Speaker B] The oath is also a strange line, because after the oath, what is he supposed to do in truth? What? After he already swore, is he now supposed to violate his oath? Or is he now forbidden to testify?
[Rabbi Michael Abraham] What did he swear? An oath does not take effect regarding a commandment.
[Speaker B] Right, so really that’s not the line.
[Rabbi Michael Abraham] What did he swear? Not to testify, or did he swear that he doesn’t know? If he swore not to testify, then that’s absurd. Come on. If there is a Torah-level prohibition, then the oath does not take effect on a commandment.
[Speaker B] Right, so it’s not correct to say that here he crossed the line, because he can still repair the prohibition—that he swore.
[Rabbi Michael Abraham] Why not? I didn’t understand. No, he swore that he does not know.
[Speaker B] He swore that he does not know.
[Rabbi Michael Abraham] That’s not an oath.
[Speaker B] Right. Still—but you’re saying, what is he actually liable for? For not testifying. It’s just that he backed it up with an oath. But that’s not—we were trying to suggest now that the oath is the line, to say that once you already swore, that’s a sign that you…
[Rabbi Michael Abraham] From here on, no longer…
[Speaker B] But it’s still reversible, that’s what I’m saying. Even after I swore that I don’t know, I can still testify. It doesn’t change the issue of reversibility. It only shows that I’m very serious about not going to testify.
[Rabbi Michael Abraham] Fine, obviously afterward he can still go back and testify. If the testimony is accepted, it’s accepted even if he swore that he doesn’t know.
[Speaker B] Exactly, that’s what I’m saying. So therefore it’s still reversible. So it’s not correct that this is the line of—anyway, I retract the suggestion. Yes.
[Rabbi Michael Abraham] In any case, so we see in Tosafot that there is an obligation to go and testify, of course, and the prohibition exists even without an oath. Bearing of sin also exists without an oath. The Nimukei Yosef here writes the same thing. Now maybe one more comment, and I’ll end with this, because we have to finish. The Pnei Yehoshua asks here, on Rashi’s explanation, “except in the case of one witness,” and so on. Here it is not relevant to ask—you see on page five? You see how there is doubt in Heaven—that’s the paragraph heading. Here it is not relevant to ask: “Why does he state categorically and teach that he is liable in the laws of Heaven? Before Heaven it is revealed whether he would have sworn about it or not.” Why does it say he is liable in the laws of Heaven? It depends on whether the person would swear falsely or would not swear falsely. So why is it so obvious that he is liable in the laws of Heaven? Again, he assumes that the liability in the laws of Heaven depends on whether he would have sworn falsely or not. Right? According to what I said earlier, his question doesn’t even get off the ground—the Pnei Yehoshua’s. Because I claim—even according to your correction—it still doesn’t get off the ground. Because the very possibility that exists creates my obligation to come. If I didn’t come, I transgressed a prohibition. The Pnei Yehoshua is assuming here that this is about causing a loss.
[Speaker B] In any case it doesn’t get off the ground, because it’s impossible to know such a thing. What? Fine, okay.
[Rabbi Michael Abraham] So, “Before Heaven it is revealed whether he would have sworn about it or not.”
[Speaker B] That can’t be revealed before Heaven, because in the end it didn’t happen. There’s the verse, “And God did not lead them by way of the land of the Philistines”—you know that? Right? “For He said, lest the people reconsider.” Why, doesn’t the Holy One know whether the people of Israel would reconsider or not reconsider? His answer is: because it never happened. If they had gone that way—
[Rabbi Michael Abraham] He can estimate what they would have done.
[Speaker B] He supposedly knows everything that they would—
[Rabbi Michael Abraham] —have done.
[Speaker B] Not guess—know. No, know what will happen. That will happen in the future, and He can know it in advance. But if it won’t happen… then what is there to know?
[Rabbi Michael Abraham] There’s nothing to know. “He knows”—it’s like Moses our teacher.
[Speaker B] “And he turned this way and that way and saw that there was no man.”
[Rabbi Michael Abraham] You know that? Yes, yes—that he saw through divine inspiration—
[Speaker B] Then how can that be?
[Rabbi Michael Abraham] He did not see through divine inspiration, because it wasn’t there.
[Speaker B] The answer is that it’s really a big question, and the answer is that it really is a big question, and the answer is—
[Rabbi Michael Abraham] —that it’s not correct; there’s no question here at all.
[Speaker B] These are only conjectures. No, you can’t know something that didn’t happen.
[Rabbi Michael Abraham] In the simple view, you can know everything. Because if you know the person all the way through, then you know what he would do in any hypothetical future case.
[Speaker B] Fine, then he has no free choice.
[Rabbi Michael Abraham] Ah—so the point is free choice, not the question whether it happened or didn’t happen. No, but if there is a problem of free choice, then even if it did happen, it can’t be known.
[Speaker B] No, fine, that’s a different discussion—
[Rabbi Michael Abraham] —but I claim that even if it happened, it can’t be known. Fine, so that was basically my comment here. The Pnei Yehoshua is essentially asking a question that, according to what I said earlier, doesn’t even get off the ground, because it does not depend on the question of what will actually happen. And besides, one more comment: who says that… who says at all that the Holy One really knows whether you will swear or not swear? This is free choice; a person has free choice, and it is impossible to know in advance what a person will choose. It depends on whether he chooses to sin or chooses not to sin. He has free choice, and the Holy One cannot know it.
[Speaker B] I wanted to add that even if it’s possible to know in advance, it’s still clear that knowing in advance what would have happened if—this is already a completely different world.
[Rabbi Michael Abraham] I’m not sure regarding the Holy One. I think that if so, then it’s the same thing. Fine. In any case, the Pnei Yehoshua says: “In any event, since the one who knows testimony does not himself know whether the other person will swear further or not, it follows that he is unconcerned with his fellow’s money, and he is liable in the laws of Heaven because he intended to cause harm.” What is he saying?
[Speaker D] There was intent here to cause harm.
[Rabbi Michael Abraham] Meaning, even if it’s true that the Holy One knows—he assumes that the Holy One knows—but I, as the witness who refrains from coming, do not know. And since I do not know, then I basically intended to cause harm. The Pnei Yehoshua, of course, follows his own approach, that he is speaking about the prohibition.
[Speaker B] Because—
[Rabbi Michael Abraham] If you’re talking about payment, and payment is compensation, then it depends on whether there really is something to compensate for or not.
[Speaker B] Like: he intended to eat pork, and mutton ended up in his hand?
[Rabbi Michael Abraham] It doesn’t matter, but the issue is the intention.
[Speaker B] But you can’t punish for intention alone.
[Rabbi Michael Abraham] No, for the intention not to come. For the intention not to come—that’s exactly the point. If you do not come where your actions could have practical significance, that itself is a prohibition, not because of the future damage that may perhaps occur. That’s what the Pnei Yehoshua is claiming. But again, I think it fits very well with his approach, because he speaks of it as a prohibition. When do you transgress the prohibition? After all, if you’re talking about payment for damage that you caused, then it really does depend on whether you caused damage or not. And if the Holy One knows, then apparently it would depend on that. Unless we say, as I said earlier in the Meiri, that even the obligation of payment is not compensation for future damage; that too is basically a punitive payment for the transgression that you committed. Yes, the Chavot Yair also says something similar; I brought that here. Okay, fine, we’ll stop here. Okay, friends, and also those on Zoom, goodbye, goodbye. Let’s hope this format improves going forward. Thank you, goodbye.