The Receiver Chapter – Lesson 18

Table of Contents

• The language of the Talmud and setting up the passage in terms of one witness and two witnesses
• Meiri: exempt in human law and liable in the heavenly sense even without indirect causation
• Failure to save versus indirect causation: a river, a liar, and the status of omission
• Other textual versions: Piskei Ri"d and the possibility of liability in human law with two witnesses
• The duty of testimony as a monetary right: Choshen Mishpat versus Yoreh De'ah
• A guardian, an expert, and an omission that turns into an act of damage
• Rabbeinu Yonatan: one witness is exempt in human law because of the oath, and with two witnesses it stands to reason that they are liable in human law
• Riaz and Rabbeinu Yerucham: a monetary claim and the language of Torah-level liability
• Nachmanides in Kuntres Dina De-Garmei: the obligation of testimony as an act of kindness, not a monetary obligation
• The breached vineyard partition in Bava Batra: Meiri’s answers and Nachmanides’ distinction
• Maimonides, the Kesef Mishneh, and the tension over whether “if he does not tell” applies to one witness

Summary

General overview

The text develops a reading of the passage about “one who knows testimony for his fellow and does not testify,” and puts at the center the question of the difference between one witness and two witnesses regarding liability in human law and liability in the heavenly sense, while examining the language of the Talmud and the views of the medieval authorities (Rishonim). It presents Meiri as emphasizing that this is not even indirect causation, because there is no act here, only an omission, a failure to save, and therefore in his view there is no room for liability in human law; but there is still liability in the heavenly sense, either because of the scriptural novelty of “if he does not tell, then he shall bear his iniquity,” or through some separate track. Alongside that, it brings textual versions and opinions such as Piskei Ri"d, Rabbeinu Yonatan, Riaz, and Rabbeinu Yerucham, who understand that with two witnesses there may even be liability in human law. What emerges is a fundamental dispute over whether the duty of testimony is a “monetary obligation” in the style of Choshen Mishpat, or “by way of acts of kindness” in the style of Yoreh De'ah, with analogies in the background to guardians, damages by omission, and the breached vineyard partition in Bava Batra.

The language of the Talmud and setting up the passage in terms of one witness and two witnesses

The text argues that from the language of the Talmud at the beginning of the discussion, it sounds as though even with two witnesses there is no liability in human law, because the Talmud says regarding “if you say it is with two” the language of “that is obvious,” and does not ask “then let him be liable in human law as well,” the way it does in other places. It explains that the novelty of the passage is that with one witness one might have thought there would not even be liability in the heavenly sense, and the Talmud comes to teach us that even one witness incurs liability in the heavenly sense. The conclusion of that reading is that with two witnesses and with one witness alike, there is no liability in human law, but there is liability in the heavenly sense; only the level of obviousness changes. With two witnesses, liability in the heavenly sense is obvious, while with one witness it is a novelty.

Meiri: exempt in human law and liable in the heavenly sense even without indirect causation

The text cites Meiri’s wording: “One who knows testimony for his fellow and does not testify, whether they are two, where suppressing their testimony causes monetary loss, or whether he is one, where suppressing his testimony removes an oath, is exempt in human law and liable in the heavenly sense, for there is not even indirect causation here, since there is no act here.” It emphasizes that according to Meiri this is not damage through indirect causation at all, but merely refraining from saving, and therefore there is no monetary claim in human law. The phrase “there is no act here” is explained as the essential point, that the damage cannot really be attributed to him. It suggests that the source of the liability in the heavenly sense is a special novelty derived from “if he does not tell, then he shall bear his iniquity,” not the ordinary track of indirect causation, especially according to Meiri, who holds that liability “in the heavenly sense” is a payment obligation and not just a prohibition.

Failure to save versus indirect causation: a river, a liar, and the status of omission

The text develops a distinction between indirect causation and failure to save: indirect causation is an action that causes damage indirectly, whereas here the person did not cause damage at all, he merely refrained from saving. It gives the example of a lost object sinking in a river and someone not saving it, and argues that there is no basis to make him pay even in the heavenly sense under the rules of indirect causation, because the one that “caused the damage” is the river. It adds that in the case of testimony, the one actually causing the damage is “the liar who refuses to pay,” and the witness merely refrains from saving. So the liability in the heavenly sense has to be explained as a special track grounded in the verse, not as ordinary indirect causation.

Other textual versions: Piskei Ri"d and the possibility of liability in human law with two witnesses

The text brings a version that appears in Piskei Ri"d, according to which the Talmud says, “If you say it is with two, then let him be liable in human law as well,” unlike the version that reads “that is obvious.” It explains that this reading gives rise to the understanding that with two witnesses there is liability in human law, while with one witness the liability is only in the heavenly sense, and that in such a case the liability is understood as tort liability, compensation, rather than punitive payment. It then asks how such an omission can be seen as tortious damage, and why the verse “if he does not tell, then he shall bear his iniquity” is needed, and suggests a move according to which the verse creates a duty of testimony, by force of which the omission becomes a kind of “damage” that can be classified within tort law.

The duty of testimony as a monetary right: Choshen Mishpat versus Yoreh De'ah

The text proposes a conceptual distinction between obligations in which the other party has a “right” against you, in the realm of Choshen Mishpat, and obligations that are commandments imposed on the person without the other party having a claim-right, in the realm of Yoreh De'ah. It illustrates this by comparing charity and interest, where the poor person or the borrower does not “claim” the right in religious court. It argues that the obligation to testify can be understood in two ways: either as a duty toward one’s fellow so that he not suffer loss, or as a duty toward Heaven so that the legal system can function. As a hint to the question of the obligation’s character, it cites Maimonides’ statement that the law depends on the fact that “he asks him to testify,” and explains that if we are dealing with the plaintiff’s right to demand testimony, then it is easier to understand how an omission could be interpreted as a form of damage.

A guardian, an expert, and an omission that turns into an act of damage

The text applies the idea that a prior obligation can turn an omission into an act of damage, and gives examples of a guardian who was negligent and an expert money-changer who gives damaging advice. It quotes Maimonides in the Laws of Hiring, chapter 2, law 3: “Anyone who is negligent is deemed a damager,” and explains that Maimonides sees the negligence of a guardian as part of the laws of damages even when it takes the form of omission. It also adds from Maimonides about one who gave his vineyard to a guardian and stipulated with him that he would work it, and he did not do so, that he is “liable as though he caused the loss directly.” This is used to support the possibility that in testimony too, if it is a monetary obligation, then even the omission of failing to testify may be considered damage.

Rabbeinu Yonatan: one witness is exempt in human law because of the oath, and with two witnesses it stands to reason that they are liable in human law

The text cites Rabbeinu Yonatan on the Rif, who explains that with one witness there is no direct monetary liability, only an oath, and therefore the witness can be exempt in human law by arguing that even if he had testified, the defendant would have taken an oath and been exempt. It infers from his wording that with two witnesses, where the testimony generates monetary liability and not merely an oath, there is room for liability in human law because the damage is more definite. It emphasizes that Rabbeinu Yonatan also ties the liability in the heavenly sense to the question of actual monetary loss and to Heaven’s knowledge of whether the defendant would have sworn falsely or not. Based on that, it presents him as understanding the obligation as a tort-type liability, not punitive payment.

Riaz and Rabbeinu Yerucham: a monetary claim and the language of Torah-level liability

The text cites Shiltei Gibborim in the name of Riaz, that one who knows testimony for his fellow and does not testify, “since this falls under the category of indirect damages,” his fellow can impose upon him an oath of hesset, because this is “like other monetary claims.” It then quotes Rabbeinu Yerucham: “One who knows testimony for his fellow and does not testify for him, with two he is liable by Torah law, with one he is exempt in human law and liable in the heavenly sense,” and interprets the contrast as indicating an approach under which with two witnesses there is a stronger framework of claim and perhaps even liability in human law. It also notes a strained possibility that the phrase “liable by Torah law” could be read merely as a prohibition, but argues that the context leans toward understanding it as payment or legal liability.

Nachmanides in Kuntres Dina De-Garmei: the obligation of testimony as an act of kindness, not a monetary obligation

The text cites Nachmanides in Kuntres Dina De-Garmei, who states that even two witnesses are exempt in human law and liable in the heavenly sense, and explains: “for he is obligated to testify for him only by way of acts of kindness… and if he did not want to fulfill that commandment, the law does not require us to impose monetary liability on him.” He distinguishes between a case like the vineyard partition, where there is a “monetary obligation to fence,” and testimony, which is “by way of acts of kindness.” Therefore a religious court does not impose payment for failure to testify, just as it does not impose payment for failing to save a purse in a river or for not giving a coin to a poor person. He formulates the difference as one between the distancing of damages, where there is a monetary right of claim, and commandments between a person and Heaven, where there is no “law of money.” The text presents this as the sharpest formulation of the Choshen Mishpat versus Yoreh De'ah axis.

The breached vineyard partition in Bava Batra: Meiri’s answers and Nachmanides’ distinction

The text brings Meiri’s question from the case of the breached vineyard partition, where “if the owner of the vineyard gave up and did not fence it, he is liable for it,” and it presents two answers: one, that “there is his act here,” because his vines spread and prohibit the grain; and another in the name of “the sages of the generations,” that since “it is known for certain that the prohibition came about through this, it is like one who causes it directly.” It uses this to sharpen the difference between damage that comes from one’s property spreading outward and the testimony case, where there is no damaging property at all, only failure to intervene. It then adds Nachmanides’ position, who explicitly distinguishes between the obligation to fence, where “he is under a monetary obligation to fence,” and testimony, which is “by way of acts of kindness,” and says that from this arises the whole question whether one can impose liability for omission.

Maimonides, the Kesef Mishneh, and the tension over whether “if he does not tell” applies to one witness

The text quotes Maimonides: “A witness is commanded to testify in religious court regarding any testimony he knows… provided that he is asked to testify in monetary cases, as it is said: ‘and he is a witness, or has seen, or has known; if he does not tell, then he shall bear his iniquity.’” It brings the Kesef Mishneh’s close reading that “witness” implies two, and that the verse “if he does not tell” is not a source for a single witness. Therefore he explains that Maimonides there is speaking where there are two witnesses, whereas regarding one witness Maimonides wrote elsewhere that he is “exempt in human law and liable in the heavenly sense.” The text raises a difficulty with that line: if one witness has no Torah-level obligation to testify, then what is the source of the liability in the heavenly sense, and what sense does a payment obligation make when the act is merely failure to save? It suggests that this reading pushes one to understand the obligation of one witness in broader terms, as a general obligation to prevent one’s fellow’s loss, or as a form of indirect causation, and it concludes that in its view there is no necessity to accept the Kesef Mishneh’s inference, and Maimonides can be read as imposing the commandment of testimony even on one witness as well, though that still requires a decision later on.

We were discussing the topic of someone who knows testimony for his fellow and saw in the Talmud there that from the language of the Talmud it seems there is a difference between two witnesses and one witness. With two witnesses, and also with one witness, if they refrained from coming to testify, then there is no liability in human law. With one witness there was a hava amina, an initial thought, that there would be no liability in the laws of Heaven, and the Talmud comes to teach us that even with one witness there is liability in the laws of Heaven. Meaning, in the final analysis there is no difference between one witness and two witnesses. In both cases there is no liability in human law and there is liability in the laws of Heaven. Where does the Talmud indicate that with two witnesses there is no liability in human law? From the fact that when the Talmud begins it says, “If you say it is speaking of two,” if this is talking about two witnesses, then it does not say, “Then let us obligate him in human law as well,” but rather what it says is, “That is obvious.” We saw in earlier passages that the question was, “Then let us obligate him in human law as well.” Meaning, the Talmud is really saying that even where there are two witnesses there is no liability in human law. That is not the question. Rather, liability in the laws of Heaven is obvious, and liability in human law is not obvious, and with one witness the liability in the laws of Heaven is not obvious. Therefore in the end they establish it as referring to one witness. And indeed Meiri, Meiri in our passage, says: one who knows testimony for his fellow and does not testify, whether they are two, where withholding their testimony causes monetary loss, or whether he is one, where withholding his testimony removes an oath, is exempt in human law and liable in the laws of Heaven, for there is not even indirect causation here, since there is no act here. That is, first of all Meiri explains why this is so at all, and we discussed this in the previous class and said that for Meiri, on his view, this fits very well, because according to Meiri liability in the laws of Heaven is liability to pay and not a prohibition, as we saw for example in Pnei Yehoshua. So if it is liability to pay, then we need to understand what exactly the liability here is, because seemingly this does not fall under the laws of indirect causation. So that is what he says: liable in the laws of Heaven, exempt in human law and liable in the laws of Heaven, for there is not even indirect causation here, since there is no act here. So what is this liability in the laws of Heaven? If there is not even indirect causation here, then in human law there is no liability because there isn’t, but in the laws of Heaven too he says there isn’t, because after all this is not indirect causation. So where did this liability in the laws of Heaven suddenly come from, the one that is obvious with two witnesses and a novelty with one witness? Apparently this is what I said in the previous class: “if he does not tell it, then he shall bear his iniquity.” This is not the regular liability of indirect causation, where in indirect causation one is liable to pay in the laws of Heaven, but rather a special liability newly introduced for one who does not state his testimony—who knows the testimony and suppresses it or does not state it. From the verse itself, the Talmud apparently understands that he has a liability to pay. Even though this does not enter the ordinary categories of indirect causation, and you see that here explicitly in Meiri when he writes it—that even where there is liability in the laws of Heaven it is not because of indirect causation. Because the whole passage of someone who knows testimony for his fellow and does not testify does not belong to the laws of indirect causation at all, because the person did not do anything. The person merely refrained from saving. When you refrain from saving—say, for example, I see my fellow’s lost object drowning in the river, and I walk by it—principally there is a commandment of returning a lost object, no danger, nothing. Principally there is a commandment of returning a lost object, “do not stand idly by your neighbor’s blood,” there are all kinds of sources one can bring for this matter. I do not save it, I do not do what I should have done. Does anyone on earth think one could sue me to pay for that? Even in the laws of Heaven? Absolutely not. Why? Because here I did not even cause damage indirectly; I merely withheld rescue or failed to save. To cause damage indirectly is when I do some action and my action causes damage only in an indirect way or through some intermediary. But when I did not do the damage at all—the one who did the damage was the river, or in this case the one who did the damage is the liar who refuses to pay you the money he owes you. I could have saved you and did not. In such a case this is not called indirect causation. What is written here, “since there is no act here,” of course is not some technical definition requiring an act, like a prohibition with no act or something like that, but simply because this is not your action. That is the point. Not that there is an exemption because you were passive. There is no reason to obligate him at all. With a prohibition that has no act, or in a case where you do something in some indirect way without an act, one might say you have an exemption—an exemption from punishment. If you did it without an act, then you are exempt. Here that is not the point. Here it is not that you only did it without an act—you did not do it at all. The one who did the damage is the river or the liar. You did not save; it is not that you caused the damage. That is much stronger than “there is no act here” in the usual halakhic sense. And regarding what was said in the passage: “If it is two,” and “it stands under ‘if he does not tell,’” yes, if it is two witnesses then it stands under “if he does not tell,” not to say that one should obligate him in human law. Meiri sharpens this even more: what relevance would there be to obligate a person for refraining from speech? And again he returns to this point that there is no act here, but it seems to me he means to say not only refraining from speech—even if it were refraining from an action there would be no basis to obligate him, because omission is not damage, only failure to rescue. Rather the explanation is this: “and it stands under ‘if he does not tell’” means it is obvious that he is liable in the laws of Heaven, and indeed in Or Zarua we have the explicit reading “it is obvious.” Meaning, in our text of the Talmud we read “it is obvious,” yes, if it is two then it is obvious. Meiri says that even if they did not read “it is obvious,” it is clear that the question here cannot be understood to mean there should be liability in human law, because he did no act at all, this is not his act of damage. Therefore even if the word “obvious” were not in the text, it is clear that the question is an “obvious” question and not “should we obligate him in human law as well.” And if so, then according to Meiri it really comes out as I argued last time from pure reasoning: according to Meiri, it comes out that he understands the liability as liability to pay. Can you see me? That screen there went dark. Can you see, can you see, can you see? Okay. Is it visible through my screen or through the camera there? Is that camera working? Okay. In any case, Meiri claims that whether or not we read “it is obvious” here, essentially it makes no sense to obligate here in human law because there is no act of damage here at all. He does not address the question, then why is there liability in the laws of Heaven? Where does that liability in the laws of Heaven come from? After all, all the liability in the laws of Heaven here is in the context of indirect causation. But the issue of indirect causation is always when you did damage by an act, only your act is an act that caused damage indirectly. You hired false witnesses, you brought things into a fire, or you bent grain over the fire there—all the previous cases we saw. You did an action, only the action you did connects to the damage indirectly. Then you can say that since the connection to the damage is indirect, this is indirect causation. But here you did not do the action at all, so there is not even an indirect connection to the damage. The damage is not yours at all, not from you. Meiri himself writes this—it is not my explanation imposed on him. This is what he says, that there is not even indirect causation here. Okay? So if that is so, where does the liability in the laws of Heaven come from if there is no indirect causation here? So I suggested in previous classes: “if he does not tell it, then he shall bear his iniquity.” It may be that the Talmud understands that what is written in the verse, “if he does not tell it, then he shall bear his iniquity,” means if he does not tell it, he must pay. According to Pnei Yehoshua this is of course perfectly simple; really there is no indirect causation here and there is no liability to pay here either, rather “if he does not tell it, then he shall bear his iniquity” means that if he does not tell it, he transgressed a prohibition because there is an obligation to tell. Then there is no problem at all, no explanations are needed; according to Pnei Yehoshua it is simple. But according to Meiri, for whom all the liabilities discussed here are liabilities to satisfy Heaven—that is, liabilities to pay—and after all here Meiri himself says this is not indirect causation, and plainly it is not indirect causation, but Meiri himself says so explicitly, so there is no way to play games with it. So if it is not indirect causation but the liability being discussed is liability to pay, then how do you get liability to pay in the laws of Heaven? I mean now: for what am I obligated to pay in the laws of Heaven? Apparently “if he does not tell it, then he shall bear his iniquity.” The words “shall bear his iniquity” are a special novelty here—that you must pay for failing to save. Okay? And perhaps, as I said in the previous class, perhaps really the point is that this is not compensation to the injured party at all. As I said before, I did not damage you, not even indirectly. The payment is punitive payment. Meaning, the Torah wants me to go and testify, and if I did not go to testify it imposes on me a punishment to pay, like a fine. And when I pay, I pay the one who was harmed, but it is like fines. Why are fines not compensation to someone, but if I pay I pay the person who was harmed? So here too it is some kind of fine, like the fine of conspiring witnesses, which also follows the sum in question although it is not compensation, because it says “as he intended” and not “as he did.” There there is no compensation. But then here too it is a special kind of fine, one not with a fixed amount, unlike most fines which have a fixed amount. By the way, half-damages as a fine with a non-habitual goring ox is also not a fine with a fixed amount; it is half the damage. So as long as the payment is punitive payment, then this is basically a fine. And perhaps I would even say: why really do I have to testify? And we may see this further on. Why really do I have to testify? This can be presented in two ways: one, the obligation to testify is for the sake of my fellow so that he not lose out. True, he cannot sue me for that loss if it happened, but why does the Torah obligate me to go testify? It is interpersonal, so that the person should not lose. Another possibility is to say that the Torah obligates me to go and testify as between man and God, because the Torah wants there to be an effective legal system. In the end of course this is for everyone’s benefit, but here it is not about damage to this specific person who now lost because I did not come testify. What practical difference does that make? I will mention it later, or maybe I will already say one sentence now. In Maimonides it is written that this law exists only if he asks me to testify. So on the face of it that reflects a conception that this is interpersonal, because otherwise the Torah demands that I testify. Why should it matter whether he asked me or not? If I know the testimony and I know there is a case about this matter, then I should go and testify so that the legal process reaches its proper conclusion, its correct result. So that, for example, could be one implication. It really is an interesting question where this comes from; we will get to that later. Okay, in any case that is what Meiri writes, and it strengthens what I said last time. Okay, now, despite the version before us and despite what Meiri sharpens here, that even without the textual version one would have to say this, surprisingly—and perhaps even shockingly, I would say—there is a version of the Talmud according to which with two witnesses there is liability in human law. And the Talmud’s question is not “with two witnesses let us obligate him in human law as well” as opposed to “with two witnesses that is obvious.” Contrary to what Meiri said—and notice, this directly contradicts what Meiri said—because Meiri argues that even if the word “obvious” were not written in the Talmud, I would still necessarily interpret the Talmud’s question as meaning that liability in human law is impossible here, because there is no indirect causation here, so on what basis would you obligate him in human law? Whether indirect causation or direct-but-induced damage or whatever. Now there are those who not only say this is possible; this is actually their version of the Talmud. That is what Piskei Ri”d, for example, brings. He cites the Talmud this way: and one who knows testimony for his fellow and does not testify for him—what case are we dealing with? If you say with two witnesses, then let us obligate him in human law as well. A different version from ours. And it is written: “if he does not tell it, then he shall bear his iniquity” applies. Rather with one. Now this is interesting, because he also brings the verse “if he does not tell it, then he shall bear his iniquity.” If this is just indirect damage in torts, then why do you need the verse? There is a general rule of indirect causation or direct but induced damage, whatever it may be, and every time there is indirect causation or direct but induced damage you must pay. Yet he does read in the Talmud that the Talmud brings the verse “if he does not tell it, then he shall bear his iniquity.” So it may be that the verse really innovates that although this does not fit the ordinary categories of indirect causation, still in the end they obligate you to pay even in human law. And with one witness it is in the laws of Heaven. Fine? With two witnesses it is in human law; with one witness in the laws of Heaven. Now here, beyond the fact that we are clearly speaking about liability in human law, it is also quite clear—or at least very plausible—that this is tort liability. Not punitive payment or anything like that. Because when he says, “let us obligate him in human law as well,” he does not mean punish him, but “human law” here means in civil court. Meaning, he must pay him if it is two people. In other words, there is some conception here that this payment is compensatory. Could one perhaps have said that “let us obligate him in human law as well” means what? That he should receive some punishment? Lashes? He will not get lashes for this because this is a prohibition involving no act. “Let us obligate him in human law as well” meaning it should be prohibited? That is not how one writes it; one says “there is a prohibition.” “Obligate” implies punishment. Therefore it is quite clear that when it says here “let us obligate him in human law as well” it means he should pay like a damager. Meaning, if this is two witnesses, then clearly they should have to pay in human law like damagers. Fine, if you think he is truly a damager, why do you need the verse? Fine, he is a damager; there are verses about a damager who damages being liable to pay. Why do you need here the verse “if he does not tell it, then he shall bear his iniquity”? Second, on the other hand, this is not really true. There is no real damager here. Meiri is right. This is just an omission of rescue. There is no causing of damage here, not even indirectly, certainly not directly. So how does liability in human law emerge here when it is two witnesses, and how does this relate to the verse? That is difficult—where does it come from? You need the verse precisely because there is no natural basis here, because he did not do anything. Yes, but then the verse—what in human law…? “If he does not tell it, then he shall bear his iniquity”—what are you telling me? That “he shall bear his iniquity,” and therefore what? He must pay compensatory damages or punitive payment? Compensatory damages. But if it is compensatory damages, that is exactly the question. “If he does not tell it, then he shall bear his iniquity” in its plain meaning is not compensatory damages. If it were compensatory damages, then the tort passages are already in the Torah. Are you saying this verse innovates that although this does not fit the ordinary parameters of tort law, here nevertheless the Torah says there is compensatory payment? And that is so obvious to you? So obvious that it did not need to be said, that if one knows testimony for his fellow and does not testify it is obvious? If I read the verse, would I have understood by myself that he must pay compensatory damages? That is far from obvious. So there is something problematic sounding here. Therefore it seems to me that what he means to say is that you really do need the verse, and there is compensatory payment here, but it is a more complex business. And here I want to suggest an idea that may shed a different light on what I have been saying until now as well. The claim is this: basically the verse tells me, “if he does not tell it, then he shall bear his iniquity,” meaning it requires me to go and testify. That is what the verse says. Now in “if he does not tell it, then he shall bear his iniquity,” the phrase “he shall bear his iniquity” is not the source from which we learn the monetary obligation. We only learn that it is an iniquity not to come and testify. It is an iniquity—Heaven will punish me for it, because this is passive omission, there are no lashes or anything like that here. Rather, once I am obligated to testify and I do not come to testify, that is already called damage. Meaning, now tort law can obligate me. In other words, if I pass by the river and see my fellow’s lost object about to drown and I do not save it, there one cannot come to me with a claim. I could have been righteous, and indeed I am even required to be righteous and save his lost object, but I have no obligation to him to save the lost object. Okay, let us put it sharply: let us say returning a lost object is a commandment between man and God, not between man and fellow. Fine? I am basically supposed to save lost objects for my fellows. We do not have to formulate it exactly that way; perhaps we can formulate it differently. It is an interpersonal commandment of Yoreh De’ah and not of Choshen Mishpat. Meaning, I do not owe him this on the monetary plane. Not that I am responsible for the money he lost. I have a commandment, just as I have a commandment to give charity to a poor person. Yes, I discussed this in previous years—those who heard me before—what is the difference between Choshen Mishpat and the other sections of the Shulchan Arukh. Seemingly, Choshen Mishpat is the monetary obligations between people—mostly in Choshen Mishpat, though there are things there that are not monetary. The monetary obligations between people. But if so, then the laws of interest and the laws of charity should also have been placed in Choshen Mishpat. Both interest and charity are monetary obligations toward people. Why are they placed in Yoreh De’ah? So my claim was that in Choshen Mishpat the obligation—in legal theory they speak about what is called Hohfeld’s table. Hohfeld’s table means that when I have an obligation toward you, you have a right against me. For example, when I lent you money, then you have an obligation to repay the debt and I have a right that you repay me the debt. Your obligation stands opposite my right and vice versa. If I damage you, you have a right that I not damage you, and I have an obligation not to damage you. If I damaged you, you have a right to receive money and I have an obligation to pay you the money. There is always an obligation corresponding to a right. Okay? Now in meta-halakhic thought people often think that in Jewish law there is only discourse of duties and no discourse of rights. That is a mistake. The discourse of rights in Jewish law is called Choshen Mishpat. Choshen Mishpat differs from Yoreh De’ah in that in Choshen Mishpat my obligations toward another person are grounded in that other person’s rights toward me. For example, if I damaged you, you have a right to receive compensation from me, so I must give you compensation. My obligation corresponds to your right. What happens with charity and interest? Does the poor person have a right to receive charity from me? No. I have an obligation to give him. He cannot go to a religious court and sue for the money that belongs to him, right? At most he can ask the court to compel me concerning the commandment, that I fulfill my obligation. But he cannot go to court and sue for his rights: “my rights were violated, he owes me money and is not giving it to me.” He is owed nothing. I have a commandment to give charity; you happen to be the person I should give it to. But the commandment is one the Holy One imposes on me; it is not your right. Okay? Therefore it is located in Yoreh De’ah. Obligations of that sort—duties resting on me that do not begin from your right but are only a duty on me—are found in Yoreh De’ah. By the way, in secular law there aren’t such things. Only in halakhah. That is what misleads people into thinking that in Jewish law there is no discourse of rights, only duties. Not true. Rather, what in Jewish law parallels an ordinary legal system is Choshen Mishpat. And in that part of Jewish law Hohfeld’s table works: obligation corresponds to right and right corresponds to obligation. The only difference is that in Jewish law there are also other areas, for example Yoreh De’ah, and there Hohfeld’s table really does not work. There truly there is a duty on me but no right for you. It is not that there are no rights for people in Jewish law; obviously there are rights for people. Okay? So these duties… What? There is also the law that you must save your fellow—doesn’t that count as an obligation…? “Do not stand idly by your neighbor’s blood.” No, once the law imposed that, then the other person also has a right. He can sue you if you did not save him, in principle. Now around this point revolved all the debates about the “do not stand idly by your neighbor’s blood” law. The question was whether it is appropriate to legislate such a law in a civil law book, yes? Not a religious one. And the claim of the opponents was that of course it is proper to help one another, but you cannot impose a punishment on someone who did not help, from Meiri’s reasoning—because of Meiri’s reasoning. Now Meiri says: what do you mean? I merely failed to save—what are you imposing punishment on me for? I did not do it; I merely failed to save. So I am not so great, I won’t get a medal from the president on Independence Day, but you cannot impose a punishment on me for such a thing. That was exactly the claim of the opponents. And by the way, those who supported that law supported it for extraneous reasons; they supported it because they wanted to insert a verse into the statute book. Hanan Porat’s interest. The law is called the “Do Not Stand Idly By Your Neighbor’s Blood Law,” and people get very, very happy when some verse gets inserted into the law books. But on the substantive issue I think the opponents were right. In countries around the world this is called the Good Samaritan law, and in most countries there really is no such law. There is no such law because it does not belong in the legal system, precisely for this reason: because I did not do anything, I merely did not… You do not have a right that I save you. I have an obligation to save you. Law does not deal with obligations that have no corresponding rights. That is your moral consideration—do it, be righteous, get a prize, a medal, whatever—but there is no legal claim on you if you did not do it. He is not entitled to your doing it. We expect you to do it; that is not the role of law. Fine? In Jewish law there are certain obligations that are indeed of this sort—I expect you to do something even though the other person is not entitled to it—but then that is criminal law, not civil law. Meaning, in the end the one who sues you is the Torah, or the court, or the Holy One, not the other person. The other person is not the plaintiff here. Okay? Now why am I saying all this? Because the claim is basically the following. If I did not go testify, then I transgressed a prohibition: “if he does not tell it, then he shall bear his iniquity.” What is the nature of this prohibition? One could understand this prohibition as a Yoreh De’ah prohibition. True, it is an obligation to testify, so naturally it appears in Choshen Mishpat because they are discussing the laws of testimony. But in its essence, this obligation is a Yoreh De’ah obligation. This is the whole discussion we have been having all along: am I really obligated to you, or did the Holy One tell me that He expects me to go testify? Then it is basically not a human obligation. But even if yes—even if it is an obligation toward you—it is an obligation toward you that the Holy One imposed on me. Yoreh De’ah, like charity. Charity too is an obligation to give the poor person money, but it is not the poor person’s right. Or in other words: you do not have a right that I come testify in your favor, rather I have an obligation upon me to go and testify. If that were the situation, then it would make no sense to obligate me in tort payments. And what the verse “if he does not tell it, then he shall bear his iniquity” says, apparently according to this understanding of Piskei Ri”d and others, is that this thing is your right. You can—and this is what Maimonides says—if you demand it of me then I have an obligation to go, because it is your right to demand that I come testify, and that sharpens this conception even more. Now if indeed that is so, then what follows? That I actually owe you to go testify. Now true, I sinned by omission, I did not come testify, there is no act in this as Meiri says, but after all in the background there is an obligation to go testify. Once there is in the background an obligation upon me to go testify and I did not do it, this is perceived as an act of damage. But that sounds simple, no? So far I have not innovated anything; I am only connecting it to what we will see later, when Maimonides says this is only if you demand it of me. But I am bringing it in to show where an implication could emerge. But for now leave that aside. The claim is that once you have a right to demand that I come and testify, then even though my wrongdoing was by omission—I merely did not testify, I merely did not come save you—where I had an obligation to save you, even an offense by omission is perceived as an act of damage. Somewhat similar to, for example, someone who shows a coin to a money-changer, okay? Now if that money-changer is an expert and he gave me an opinion… an incorrect opinion about the coin, I came to him as an expert to tell me what it is worth, then I can sue him. Why? Because he is an expert, I came to him as a professional, perhaps I even paid him for that opinion, it does not matter. If I just came to you casually and you expressed your opinion, then true, you were reckless and gave an opinion without really knowing; you caused me damage, but it is indirect damage. Therefore you are exempt, at least in human law. But the money-changer, since he is an expert, there are many opinions that he must in fact pay me. Because when I come to an expert, even though he only damages indirectly—and in my case I am claiming even if he is not even indirect but merely omitted rescue, he did not save—if it was his job to save and he did not save, that is considered an act, not an omission, but damage, and he has to pay in human law. There is a book by someone named Roni—forgot his surname—I have it at home, I sent it around—someone from here I think, from the law faculty, who wrote a book about act and omission in halakhah, I think, something like that. I do not remember the exact title, maybe “Act and Omission in Halakhah”; I can find it. And there indeed one of the criteria he brings from legal sources and so on—one of the prominent criteria—is the question of what your basic obligation is. If you have a basic obligation to do an act, then even if you did not do it and ostensibly this is only negligent omission, they treat you as someone who committed the offense actively. Because you had a duty to act. The most striking example is the case of a guardian. When I entrusted an object to a guardian, and then the guardian did not guard properly. Okay, the object was stolen or lost—a paid guardian is liable even for theft. Okay, the guardian must pay in human law. Why? He merely did not guard; he did not save the object from the thief, the thief took the object. Why must he pay? He must pay because there is a contract between us; that is why I gave you the object, so that you would guard it. If you had—and this is a Choshen Mishpat obligation because it is a contract—then you were obligated to me, I have a right that you guard it, I even paid you if you are a paid guardian. So I have a right that you guard the object I entrusted to you. Where I have a right that you guard the object I entrusted to you, then even if you merely did not guard, meaning you were passive, you must pay. This is called being a damager. Already in the baraitot at the beginning of Bava Kamma, those of Rabbi Ḥiyya and Rabbi Oshaya, they list the four kinds of guardians among the primary categories of damage. Meaning, a guardian’s obligation to pay is part of the tort payment framework. It is not punishment; it is not punitive payment. You pay me compensation for the object I lost. Why? After all you were only indirect causation, you did nothing. The same is true, by the way, with my property that caused damage. If my property caused damage to you, why should I have to pay? I merely did not guard it. Because the Torah imposes on me an obligation to guard my property so that it does not damage someone else. Once I have an obligation to guard my property and I committed an offense by omission, because I failed in my obligation but only by omission, the fact that it was omission does not exempt me. It is considered an active act. A nice example of this matter is the words of Maimonides in the laws of hiring. Here it is before you, chapter 2, law 3. Maimonides writes as follows: It appears to me that if a guardian was negligent regarding slaves and the like, he must pay, for he is exempt regarding slaves, land, and documents only from the law of theft and loss and death and the like. For if an unpaid guardian was guarding movable property and it was stolen or lost, he swears; but with slaves, land, and documents he is exempt from an oath. And similarly, if he was a paid guardian who pays for theft and loss with movable property, he is exempt from paying for these. But if he was negligent with them, he must pay, for every negligent person is a damager, and there is no difference between the law of one who damages land and one who damages movable property, and this is true law for those who understand, and it is proper to rule this way. What does that mean? Maimonides says there is a difference among the liabilities of the different kinds of guardians. There is liability for theft and loss, there is liability for unavoidable accident depending on a borrower, and there is liability for negligence. A guardian’s negligence is not from the law of guardians but from the law of torts. What is the implication? The law of guardians was not stated regarding land, documents, and slaves. They do not take an oath for land, documents, and slaves, and the guardian’s responsibility also does not apply; the contract of guardianship basically does not take hold on slaves, land, and documents. But if you were negligent, you will have to pay. Why? Because what you pay is not by force of the guardianship contract; you pay as a damager. If you damage land, do you not pay? Of course you pay. The big question raised here—and Raavad comments on it too, and many commentators and exegetes disagree with Maimonides—is: what do you mean? If the guardianship contract does not apply to this, then why am I a damager? I merely failed to guard; at most I am indirect causation, or even less than indirect causation, merely failing to save, as Meiri said here. How can I have to pay? Thus Maimonides says that a guardian who was negligent and left the door open—the door open, and the animal went out and was lost. Okay? Maimonides says: that is negligence. A negligent person is a damager. And if you are a damager, you have to pay. Now let me ask you: if I opened a door before your animal and the animal went out and was lost—in your house, and I am not a guardian, nothing—do I have to pay? The first mishnah in the chapter HaKones, we learned this last semester, says no, I am exempt. Why? Because I am only indirect causation. I opened the door; the animal went out on its own. That is only indirect causation. So why with a guardian do you obligate me—not merely in the laws of Heaven? If it were in the laws of Heaven, fine, that would be specific heavenly liability because of the contract. Maimonides says no, it has nothing to do with the laws of guardians; therefore it applies even with land. It is from the law of damagers, tort law. But in tort law such a thing does not normally require payment. Clearly what Maimonides means is the following. The contract does apply here. You took the object upon yourself and said: I am responsible that this object not be lost. Once the responsibility is on you, even if you were merely negligent by omission, this is called active negligence. True, if I open the door before an animal in your house, clearly they will not obligate me as a damager. Because I have no duty to guard. If I have no duty to guard, then they judge me as a person who caused damage, and as a person who caused damage here I am only indirect causation. But if I am a guardian and there is a contract between us and I received this object for safekeeping, then basically the duty of guarding is on me, built into me. Therefore he did not guard the object. He did not guard the object because he knows I am guarding the object—what is called reliance, yes? So he is relying on me. In such a situation, even if what I did was an offense by omission, a passive offense, I merely did not guard or did not save or something like that, once there is an obligation on me to do this, after all I had an obligation to lock the door and I did not lock the door, that is not the same as someone who opens the door and has no obligation at all. Once there is an obligation on me, then even if my action is indirect causation or omission or whatever, it does not matter—I am considered a person who caused damage. I must pay. Then according to Maimonides here, this is a kind of combination of the guardianship contract and tort law. Tort law says that if there is a contract between you, then even if you did it in some way or another such that the contract itself cannot obligate you, we will obligate you under tort law. But that is because there is a contract between you, and the contract is the background for the tort obligation. Therefore all these questions on Maimonides are not valid. That is what Maimonides also says later; look. “And there is no difference between the law of one who damages land and one who damages movable property,” and so on. “And my teachers likewise ruled that one who entrusted his vineyard to a guardian, whether for sharecropping or for unpaid guardianship, and stipulated with him that he would dig or prune or work it properly, and he was negligent and did not do so, is liable as one who caused the loss directly. And similarly in every analogous case, one who caused the loss directly is liable in all circumstances.” What did the guardian do? After all, what did the guardian say? He was to dig, prune, work, yes, protect the vineyard. And now he did not do it. That is omission. He did not do anything. We are not talking about a contract that included a compensation clause—if you do not do this, you will pay—then you are liable by contract law. The contract obligated you to pay if you did not do it. Here we are speaking about liability in torts. If I am guarding this thing for you, now how is this torts? I merely did not save the vineyard from pests; I did not dust it. Fine, so I did not save it from pests. How do I have to pay? Because once you accepted responsibility to do this, and by doing so released the owner of the vineyard from doing it—otherwise he would have done it and protected his fruit—then even by omission you are considered as one who committed an act of damage directly, and then you are liable in human law for tort damages. That is what Piskei Ri”d says in our case. Therefore I think that when Piskei Ri”d brings the verse “if he does not tell it, then he shall bear his iniquity,” that verse only comes to say that I have an obligation to go and testify on your behalf. The Torah imposes on me an obligation. Then, says the Talmud according to Piskei Ri”d, once I have an obligation to go and testify, then true, when you suffered loss it was only because of my omission, I did not go testify, that is all. But once in the background there is an obligation on me to go and testify, then even an offense by omission is considered an act of damage done directly, and one is liable in human law for tort damages. By the way, now that I understand this in Piskei Ri”d, perhaps this is also a good explanation in Meiri. Meiri argues that here there is not even indirect causation and he did nothing at all. Therefore clearly there is no liability in human law. I asked: according to Meiri, then what liability in the laws of Heaven could there be here? After all, the liabilities in the laws of Heaven in this passage are cases of indirect causation, where one is exempt in human law and liable in the laws of Heaven. But Meiri says here it is not indirect causation. So how can he be liable? It may be that Meiri goes with Piskei Ri”d. “If he does not tell it, then he shall bear his iniquity”—you have an obligation to go and testify, and you did not testify. Meiri says yes, but if what you did was total omission with no act at all, then there will be no liability in human law. Piskei Ri”d says there is even liability in human law—you are viewed as one who directly caused damage. Meiri will not accept that. Meiri will say there is no liability in human law, but he may still go along the path of Ri”d in this sense: once there is an obligation on you, ultimately this counts as if you were like indirect causation. And once you are considered like indirect causation, then you pay in the laws of Heaven under the ordinary payments for indirect causation. Then even in Meiri we do not need to say that the fourth example is an exceptional example among the four listed here; rather in the fourth example too the payment is payment for indirect causation, indirect causation in torts. Only here you are considered indirect causation because of “if he does not tell it, then he shall bear his iniquity,” because in the background there is an obligation on you to go and testify. Look for example at Rabbenu Yonatan—I did not read him in the previous class—Rabbenu Yonatan on the Rif, Rabbenu Yonatan of Lunel, yes? So on the Rif—I am sharing this on the screen if you want—he says as follows: Rather, in the case of one witness, who obligates him not to pay money but only an oath, therefore he is exempt in human law, for he can say to him: even if I had testified for you, he would not have paid you; rather he would have sworn to you and been exempt. But in the laws of Heaven he is liable, because it is revealed before Heaven that if this one had testified and would have obligated him to swear, he would not have sworn falsely and would have paid. So he explains—we discussed this in the previous class—why with one witness he is exempt in human law: because he can say to him, look, even if I had testified, after all he would not have paid; he would have sworn and been exempt. And we discussed the question whether an assessment of what he would actually have done is needed in order to obligate you to pay for not coming to testify. On the Rif itself there is Rabbenu Yonatan; you look around the Rif. So the basic claim is: if—this is the question—do you need the assessment that the defendant would really have paid in order to obligate me for not coming to testify? Because I do not know what the defendant would have done. But the Holy One does know, so says Rabbenu Yonatan. The Holy One does know. Now I ask you to look carefully at Rabbenu Yonatan’s wording: why does he exempt the one witness in human law? He says: rather, in the case of one witness, who obligates him not to money but to an oath, therefore he is exempt in human law. And what about two witnesses? He is speaking here only about one witness. What about two witnesses? Two witnesses obligate him to money, not an oath, right? So if they do not come testify, they are liable in human law, like Ri”d. Right? This is clear from his wording. Everything he says here is about one witness. Since with one witness there is no monetary liability but only liability to swear, and with an oath liability he might have sworn falsely and in any event you would not have gotten your money, therefore you cannot sue me; hence in human law he is exempt. But with two witnesses this reasoning does not exist, because if two witnesses had come he certainly would have paid, right? He would have no way to swear or not swear; he certainly would have paid. So Rabbenu Yonatan says that when in fact there is no way to evade—meaning if, had I come to testify, he would indeed have paid—then failure to come testify creates liability in human law. The whole reason why with one witness there is no liability in human law is that with one witness he could have sworn falsely and been exempt. Meaning that with two witnesses he clearly holds there is liability in human law. And indeed it comes out once again that in Rabbenu Yonatan’s view there is, like Piskei Ri”d, liability in human law. And again I claim that not only is there liability in human law, but that it is compensatory tort liability. Why? Because there is fundamentally an obligation on you to go and testify. That is all. Only what? Exactly because of that he says it is tort liability, but if it is tort liability then show me that damage really would have occurred here in the end. After all, in the previous class I argued with you about this because I said that even if you say there is liability to pay here in the laws of Heaven, it is punitive liability, not tort liability. If it were punitive liability there would be room to say that I do not care what would have happened in the end—whether the defendant would have sworn falsely. So what difference does it make if he would have sworn falsely or not? You did not fulfill your duty, the court did not issue the proper ruling, and for that offense you pay punitive money. But now I retract this in light of what I am saying here: perhaps this really is actual tort payment. Since there is an obligation on you to testify, then even an offense by omission is considered an act of damage, and you must pay. Okay, so if so, that is also what Rabbenu Yonatan says about one witness. Regarding two witnesses, Rabbenu Yonatan says you must pay in human law because clearly you caused him loss. Because if you had come to testify—if both of you had come to testify—the defendant would have paid. Against two witnesses he can do nothing. Okay, but what happens with one witness? With one witness, Rabbenu Yonatan says, he may have sworn falsely and been exempt. Therefore there is no liability in human law, and there was an initial thought that there would not even be liability in the laws of Heaven because you did not cause him any loss. The Talmud comes to teach us that there is liability in the laws of Heaven. But all this, of course, is only because there was an option that there really would have been monetary loss here. Why? Because in the end you are paying for the monetary loss. The payment is not punitive. The payment is tort compensation. Therefore he says this does not work in human law because in human law you do not know whether there is loss. Maybe he would have sworn falsely and not paid you even if I had come to testify. You cannot say that I caused you a loss. And again we see that Rabbenu Yonatan requires there to be loss in order for there to be payment. Meaning, he sees this as compensation for tort damage. And I say you see this both from his discussion of two witnesses and from his discussion of one witness. In his discussion of two witnesses you see it—there is no direct discussion of two witnesses, you infer it from the implication. Since with two witnesses he obligates in human law, clearly this is tort compensation. And I explained above why this is tort compensation: because there is a contract in the background. But even from the discussion he does make about one witness, there too you see that it is tort compensation. Why? Because the fact is that to ground liability on the witness—why must he pay in the laws of Heaven if he did not come testify?—he needs the question whether loss was caused to the plaintiff. And if the loss would not have been caused, then you would not pay. That is what he says: basically in human law, in the laws of Heaven you cannot—in human law you cannot obligate the single witness. Why? Because the single witness can always say: I did not come testify, but even if I had come testify, the other one would have sworn falsely and been exempt. Prove that you suffered a loss because of me. And in order to obligate me to pay, one has to prove that you suffered a loss, because this is tort compensation—again, according to Rabbenu Yonatan. Not as I said in the previous class—that you need not prove loss; it is enough that there was a possibility of loss in order to obligate me to pay. Rabbenu Yonatan says no, no, there has to be proof of loss. Therefore he says this does not work in human law. So why does it work in the laws of Heaven? After all, even in the laws of Heaven perhaps he would have sworn falsely and perhaps not. And notice: even in the laws of Heaven, the payment is compensatory tort payment. He takes this all the way, like Meiri. This is indirect causation in torts, and the liability in the laws of Heaven is tort liability in the laws of Heaven. Therefore even in the laws of Heaven you pay only because of the loss you caused, not just for no reason. How do you know there was a loss? Because in Heaven they know there was a loss. In Heaven they know there was a loss. You might say: fine, but I myself do not know whether there would have been a loss, and I want to pay in order to satisfy Heaven; I do not know what Heaven knows. Perhaps he really means punishment and not payment in the laws of Heaven, I do not know. Because otherwise what difference does it make that Heaven knows? After all, I as the witness who did not testify now want to come pay in order to satisfy Heaven; I could ask myself, wait a second, maybe he would have sworn falsely and been exempt, and then there is no obligation on me even in the laws of Heaven. The fact that Heaven knows he would not have sworn falsely—that is Heaven. What does that have to do with me? I do not know, but you want me to pay. So there is a certain comment to be made on Rabbenu Yonatan. In any case, Rabbenu Yonatan truly joins Ri”d in the sense that with two witnesses there is liability in human law, and even with one witness, where the liability is only in the laws of Heaven, it is tort liability and not punitive liability. And the verse “if he does not tell it, then he shall bear his iniquity” is brought here only to provide the background: since there is an obligation to testify, even if you did not testify merely by omission, this is called an act of damage. Okay? That is basically the claim. Now in Shiltei Gibborim here, for example, he brings the Riaz. The language of Riaz: one who knows testimony for his fellow and does not testify for him—since this falls under the category of indirect causation. What is “the category of indirect causation”? He does see this as indirect causation, notice. Whereas Meiri wrote above that this is not indirect causation at all, here it is indirect causation. His fellow can impose on him a rabbinic oath that he did not deny his testimony, for if he denied it he would have to pay him, and this claim is like any other monetary claim. Basically he argues that one can sue him like any other monetary claim. Now here this is presumably speaking about two witnesses and not one witness, because with one witness, even if he had come, who says there would have been monetary loss? But that is basically the claim. The Baḥ indeed wants to argue that Riaz means specifically two witnesses, but in the simple reading of Riaz’s language that is not clear. Look at Rabbenu Yeruḥam: one who knows testimony for his fellow and does not testify for him—with two he is liable by Torah law; with one he is exempt in human law and liable in the laws of Heaven. What does “liable by Torah law” mean? A somewhat vague expression, but from the contrast between two and one—he says with one he is exempt in human law and liable in the laws of Heaven. According to how Rashi reads the Talmud, with two as well he is exempt in human law and liable in the laws of Heaven. So why does Rabbenu Yeruḥam use a different phrase, “liable by Torah law”? Plainly it means liable to pay in human law. And with one he is exempt in human law and liable in the laws of Heaven. That does not fit. Why? Because otherwise would that make it only rabbinic prohibition? No—he does not say liable in human law, so why does he write “liable by Torah law”? Liable in human law by Torah law. He only wants to say that this is by Torah law and not rabbinic. Liable in human law by Torah law. He is emphasizing it, since after all this is an omission. The difficulty is what Meiri says: after all this is omission; there is not even indirect damage here. So how can you obligate him in human law? He says: no, by Torah law he is liable in human law. Why? Because perhaps of “if he does not tell it, then he shall bear his iniquity,” or something like that. And with one he is exempt in human law and liable in the laws of Heaven. Again, Rabbenu Yeruḥam too joins Riaz and Rabbenu Yonatan and Ri”d, that the liability here is a Torah-level liability. One could force the reading that “liable by Torah law” means there is a Torah prohibition. Meaning not like Meiri—not like Meiri and not in human law, but “liable by Torah law” means there is a Torah prohibition of “if he does not tell it, then he shall bear his iniquity.” And with one there is no Torah prohibition of “if he does not tell it, then he shall bear his iniquity,” and therefore in terms of payment he is exempt in human law and liable in the laws of Heaven. Whether as punishment or as payment, whatever it may be, but there is no Torah prohibition of “if he does not tell it, then he shall bear his iniquity.” I remind you that in the previous class I brought the Netivot and the Tummim, who indeed say that even according to the Talmud’s conclusion, one witness has no Torah obligation to come and testify. “If he does not tell it, then he shall bear his iniquity” was said only about two witnesses, not one. I argued with them; I wanted to claim that the Talmud does not sound that way. They proved it from the Talmud. I claim that not only is it not proven from the Talmud, but the Talmud does not sound that way. Because otherwise why would one witness be liable in the laws of Heaven? Is he not obligated at all to come and testify? A rabbinic enactment? A rabbinic enactment—then obligate him also to pay rabbinically. Why in the laws of Heaven are they demanding payment from him for a rabbinic enactment? It sounds like a Torah prohibition, not a rabbinic one. Therefore I said that even from Rashi one cannot infer this, because when Rashi said there is a Torah obligation only for two, he was explaining the initial thought that with two there is liability in the laws of Heaven but with one there is not. But in the conclusion it was newly taught that even with one there is liability in the laws of Heaven, meaning “if he does not tell it, then he shall bear his iniquity” also speaks about one witness. How can there be “laws of Heaven” for a rabbinic enactment? Maybe there can be, I do not know, but to say that as something simple, and the Talmud says not a word about it? In the plain sense when they say “liable in the laws of Heaven,” that means you committed some Torah-level prohibition. That is obvious. Therefore I say that “exempt in human law and liable in the laws of Heaven” means there is a Torah prohibition here. If so, then the “with two he is liable by Torah law” at the beginning of Rabbenu Yeruḥam’s words probably means liable in payment by Torah law, in human law. By the way, there is room to infer this also from the language of Maimonides. Maimonides in chapter 17, law 7 says as follows: one who hires false witnesses to testify against his fellow is exempt in human law and liable in the laws of Heaven. And similarly, one witness who suppressed his testimony and did not testify is exempt in human law and liable in the laws of Heaven. What about two witnesses? There is nothing. The law of two witnesses does not appear in Maimonides. The case of hiring false witnesses appears, but witnesses who refrain from coming to testify does not appear in Maimonides—only one witness who refrained. He does not say, “and even one witness who suppressed his testimony”; he says, “and similarly one witness who suppressed his testimony.” Plainly in Maimonides it seems that with two witnesses who suppress their testimony there is liability in human law. And that makes reverse sense. Why? Because he did not change the formula. I do not understand. Because if he didn’t write it then that means liable in human law? Yes. If the law were that they are liable in the laws of Heaven, you would have to write that. After all, there is a novelty in the passage. After all, there is a novelty in the passage that with two witnesses who do not come testify, “and if he does not tell it, then he shall bear his iniquity” means there is liability in the laws of Heaven. Where does that appear in Maimonides? But this is a legal ruling; he does not have to write everything. True. But if he did not write it, then the law is the opposite. Not the opposite—if he did not write it, then simply two witnesses who did not come and testify must pay in human law as damagers. Simply? Yes, they are damagers. “Simply” is the passage, that they are exempt. No, so I said: according to Maimonides himself, especially according to Maimonides himself, because in the laws of hiring we saw that Maimonides understands that if there is a contract in the background, then even your offense by omission is considered an act—you are considered a damager. So from Maimonides’ standpoint, this is the simple law. If you wanted to tell me that it is only liability in the laws of Heaven, you would have to say so. Generally speaking, Maimonides cannot just omit a liability in the laws of Heaven; that is absurd. Liability in human law you could say he omitted because he relied on something else, even if you did not find where, but there could be another place from which it emerges. But liability in the laws of Heaven is always a novelty. Whatever it may be, how do you know what happens in Heaven? Maimonides has to tell me about this liability in the laws of Heaven. He says nothing. So this is a kal vaḥomer? What? By an a fortiori argument. No, it is clear there is also liability in the laws of Heaven, but what about liability in human law? He should have written: “and similarly, one who suppressed his testimony, even if he was only one witness.” Had he written that, I would understand that all of it is in the laws of Heaven. When he says, “and similarly one witness who suppressed his testimony,” it is very clear that in making the comparison he is speaking about one witness who suppressed his testimony, because one witness who suppressed his testimony really did not cause damage, because maybe the other party would have sworn falsely and been exempt. But two witnesses who suppressed their testimony—that is damage, so they should have to pay in human law. Look for example at the Shulchan Arukh, as a comparison—I think we saw it last time, don’t you remember? Anyone who knows testimony for his fellow and is fit to testify for him, and his fellow has benefit from his testimony, is obligated to testify. And if they were asked to testify—yes, we saw the “asked”—whether there is another witness with him or whether he is alone, and if he suppresses his testimony, he is exempt in human law and liable in the laws of Heaven. How do you understand this? I think here both one witness and two witnesses are only in the laws of Heaven. Right? Because he writes at the beginning: he is obligated to testify whether he is one witness or two, obligated to testify. And if he suppresses his testimony—it is not likely that “if he suppresses his testimony” refers only to one witness. First he put one witness and two witnesses into the same package. He says you have to come and testify, whether you are one witness or two. Fine? And if he suppresses his testimony—who? Either one witness or two—he is exempt in human law and liable in the laws of Heaven. Meaning, he understands like Rashi, that with two witnesses if they suppress their testimony they are not liable in human law, only in the laws of Heaven. But in Maimonides it does not seem that way. In Maimonides it seems to be liability in human law. Okay? There is something a bit strange to me here: seemingly he is speaking here about the law of one who suppresses his testimony in a case that requires two witnesses. “A witness who suppressed his testimony”—no, a single witness who suppressed his testimony. No, no. A witness who suppressed his testimony—either one or two. “Whether there is another witness with him.” He is speaking about a specific testimony that he suppressed, though he was not alone. So why, if he suppressed his testimony and the other witness did testify and the defendant did not swear and paid, then why should the one who did not testify… No, if the other witness testified and the defendant did not swear and paid, then I assume he would not have to pay. No, in the Shulchan Arukh’s language it says he has to pay in the laws of Heaven. No, not in the laws of Heaven either. What do you mean? So maybe one… No, not in the laws of Heaven either, because as I said, even in the laws of Heaven the liability is tort liability, and therefore Rabbenu Yonatan and the others made the whole calculation there: wait, what will happen if he swears or does not swear? You see that even in the laws of Heaven the question of outcome matters. Did in the end he suffer loss or not? Rather, this tort liability is only in the laws of Heaven, not enforceable in human law, but the category of liability is tort liability. If there was no damage, there is nothing. That really would be the practical difference. Meaning, where—as I said in the previous class—we are speaking about punitive liability and not tort liability, there would be room to deliberate that even if no damage occurred in the end, you disrupted a legal process and for that you deserve punishment. The punishment is to pay, but it is punishment, not compensation. Then indeed there is room to say that it does not depend on the calculation of whether in the end he swore or not. You committed this offense, “if he does not tell it, then he shall bear his iniquity”—pay. But as I am saying today, that need not be so. Meiri, after bringing the earlier passage that I read, raises a difficulty from the Talmud in Bava Batra, at the beginning of Bava Batra, concerning a breached vineyard wall. “And if you should say: but in the case of the vineyard wall that was breached, Bava Batra 2b, if the owner of the vineyard gave up and did not repair it, he is liable for it.” “Liable for it” means he has to pay, fine? If so, he basically forbade the grain of the field adjacent to the vineyard, because there is mixed species here. A grain field and a vineyard together are forbidden mixtures. So if he did not fence it, he is liable for it, if indeed the roots of the vineyard extended toward the field. Now Meiri is troubled, because after all there is no act here; he merely did not repair it. So why does he pay? Is this indirect causation—or even not indirect causation, even worse than indirect causation, as he said above. Remember: this passage appears immediately after the previous passage. The previous passage, where he says this is not even indirect causation but nothing at all. Fine? So he says: then what happens in the case of the vineyard wall? Why there must he pay? “It seems to me that in any event there is an act of his here,” yes, notice—after all, what troubles Meiri? The vineyard wall, where the owner did not repair it, and so he is liable. “It seems to me that in any event there is an act of his here, namely that his vines spread by their natural growth and sanctify the grain,” that is, make the grain forbidden. Meaning, since my vines are like my ox that goes and causes damage, and I merely did not guard it. So my omission, my negligence, was by omission, okay? Right, but my ox did an act, and my ox is my extended hand, my agent, so this is indeed considered an active act on my part, and therefore also in vineyard mixtures, true, I merely did not fence it, but this is exactly like not guarding an ox and the ox goes and causes damage. Here I did not guard the roots of the vineyard, and the roots of the vineyard vines went out and caused damage. So therefore this is called an act. That is the first answer. “And the sages of the generations before us answered that since it is certainly known that the prohibition comes through this, he is like one who causes it directly.” What does that mean? He says that because it is certain that the prohibition will come, therefore he is like one who causes it directly? Then what about two witnesses who do not testify? Why there is there no liability in human law? Meiri’s view is that there is no liability in human law with two witnesses, like Rashi. But there too the damage will certainly come. If the two witnesses do not testify, you are finished. If the two witnesses had testified, you would have gotten your money. Yes, but not through that. What do you mean “not through that”? Why not? Of course through that. I came and did not testify. Through that you lose. Answer: the act is that he… So how is that different from not fencing the vineyard? There too you lose through the vine’s growth, not through the fact that he did not fence it. But no—“through this,” what does “through this” mean? Through this, through the fact that he did not fence it. Because if you mean through the fact that the vine spread, that is the first answer. The first answer says that because my vine spread, that is considered my direct act, an active act, not omission. So what does the second answer say, “the sages of the generations”? They say that because he did not fence it, therefore that is considered his act and he has to pay. So why with witnesses who did not testify is it not like that? At this point I do not understand what “the sages of the generations” means, but… It does not matter, Meiri never gives names. Meiri always says things like “the great codifiers” for Maimonides, “the great commentators” for Raavad, “the sages of the generations”—I think that means Sefer HaHashlamah if I remember correctly. There is an index of all these labels for each sage here. Okay, in any case, “the prohibition comes through this”—it sounds as if this is automatic. If you did not fence it, it will grow. With witnesses too it is like that. If the witnesses do not come, because of that he lost the money. If they had come, he would not have lost. Of course. If the witnesses do not come, maybe others will come and say, listen, I do owe you the money. You saw that the person was denying it—what do you mean?—and you did not come testify. But it is not automatic that because he did not testify he becomes liable; maybe others will come… Here too it is not automatic that because I did not fence it; maybe the wind will blow the other way, other things may happen. But you saw they did not come, the ruling is about to be issued, no other witnesses came, the man does not admit—what now? You are standing outside the courthouse gate and not entering. I think Binyamin in the previous class also raised this possibility, that perhaps this is not certain damage for the question whether it is indirect causation or direct induced damage; we discussed that a bit. Maybe, I do not know, but it does not seem that this is his distinction here. “He is like one who causes it directly because the prohibition comes through this”—he does not even say certainly, but “comes through this.” So how is that different from not testifying? Why is not fencing not the same as not testifying? There are several possibilities. One possibility is to say that this still continues the previous answer. Meaning, true, you cannot ignore the fact that these vines belong to me. This is my property going out and causing damage. When my property goes out and causes damage, they view the failure to fence as something through which the prohibition comes. He only comes… So in essence the direction is like the first answer, only adding another layer: not only did my vines go out, but they went out because I was negligent and did not fence it. According to the first answer, independent of my negligence, if my vines went out then my property caused damage to you and I have to pay. Here he adds—it is somewhat… So this is somewhat related to that conceptual investigation in tort law: does negligence in guarding create liability, or does the very fact that your property caused damage create liability? So his first direction says that the very fact that my property caused damage obligates me to pay. The second direction says no, there must also be your negligence. The fact that you did not fence it and afterward your property went out and caused damage obligates you, but then the two answers are really in the same direction. That is one possibility. Another possibility is really similar to the previous one but a bit different. If I do not come testify, one cannot say that the damage that happened to you happened because of me. I could have saved you, but I did not cause you damage. Right? That is what Meiri explained to us above as well. With the vines—again this leans on the reasoning I mentioned before but is a slightly different formulation—with the vines it is not true that I merely failed to save you. My vines are going out and damaging you. I merely could have saved you by fencing them. Now true, from the perspective of the fencing, that is only failing to save; it is not causing damage. But where the fencing is meant to stop your own property from damaging me, one cannot say that you merely failed to save—you caused damage, because you failed to save me from yourself. Exactly. And again, you failed to save me from yourself. That is a slightly different formulation from what I said before, but here it seems to fit his language better. Because he says, “he is like one who causes it directly; the prohibition comes through this.” And what did he say above? Above, regarding witnesses who do not come testify, what did he say? No, there the damage does not come through this; he merely did not save. So that seems to be the difference between them. Because there is another possibility—to say that perhaps the obligations are different obligations. The obligation to fence between the vineyard and the grain field—is that a Yoreh De’ah obligation or a Choshen Mishpat obligation? That is the question. Yoreh De’ah, no? I do not know. In terms of the prohibition it is a Yoreh De’ah obligation, but besides the prohibition that I am creating of mixed species, I am also damaging you—I am turning your grain into something forbidden. It could be that the obligation to fence is a Choshen Mishpat obligation too, not only to prevent a prohibition but to prevent the damage that will happen to you. If I have a Choshen Mishpat obligation on me, then even if I violated it by omission, that is considered direct damage. That is what we saw in Maimonides; that is the whole principle I discussed above. Okay? What about the obligation to testify? According to Meiri, as we explained him above, the obligation to testify is a Yoreh De’ah obligation, not a Choshen Mishpat obligation—and that is the paradox, because the obligation to testify appears in testimony law, in Choshen Mishpat, but in its essence this is not an obligation toward the other person. I am not obligated to testify in order to prevent you harm; I am obligated to testify so that the legal process will be proper. Therefore there it is basically an obligation toward Heaven. It is not your right, yes? It is Yoreh De’ah, not Choshen Mishpat. In the case of vineyard mixtures you have a right to demand that I fence it, just as with invasion of privacy—it comes in that context of neighboring damages. So just as with invasion of privacy, also with mixed species you have a right under the laws of neighbors to sue me to fence it so that you not suffer damage. Once you have a right, my obligation is a Choshen Mishpat obligation. So if I violated it merely by sitting and not acting, by omission, since the obligation is a Choshen Mishpat obligation, that is considered a direct act. Exactly—after all that is why you had to fence it, so that damage would not occur. How can you tell me that you did not do the damage? But with the obligation to testify, you cannot sue me to come testify. Rather, the Torah obligates me to go and testify—“if he does not tell it, then he shall bear his iniquity.” Not as I said before that it depends on a demand; now I am following another track to explain Meiri here. Then the claim is that this is a Yoreh De’ah obligation, not a Choshen Mishpat obligation. A Yoreh De’ah obligation cannot turn an act by omission into a direct act, because in the end you cannot say that I directly damaged you. I was not okay; fine, I deserve punishment in the laws of Heaven, all true, but you cannot say that you have a right to demand that I come testify. You do not have that right. I have an obligation to go testify, not that you have a right—just as a poor person cannot sue me in court to pay him the charity, okay? Or someone from whom I took interest cannot sue me in court to return the interest. Nachmanides too, in his treatise on direct but induced damage, says: “And one who knows testimony for his fellow and does not testify for him—if it is only one witness, he did not do him anything at all, for perhaps the other would have sworn and been exempt; nevertheless, two as well are exempt.” Fine, you see, this is the addition not found in Rabbenu Yonatan. The beginning is like Rabbenu Yonatan, but Nachmanides adds: “for the Talmud asks: exempt in human law and liable in the laws of Heaven? If with two, that is Torah law. And it does not ask: if with two, why is he exempt in human law? Thus it turns out that two as well are exempt in human law and liable in the laws of Heaven.” Nachmanides goes like Meiri and Rashi. Why is that really so? Because from the standpoint of his reasoning, he says that with one he did not do anything, because with one it may be that the other would have sworn and been exempt. Therefore he is exempt in human law and, according to the conclusion, liable in the laws of Heaven. But with two, there is no way to escape. So if the reason one witness is only liable in the laws of Heaven and not in human law is that he could escape, then with two I would expect there to be liability in human law, because there one cannot escape. But Nachmanides says no, with two too it is like that. What is the idea? Why so? Apparently Nachmanides understands that in some sense this payment is punitive payment and not tort payment. Only with one witness nothing happened—let us say we go like the Netivot and Tummim, that with one witness “if he does not tell it, then he shall bear his iniquity” was not said at all; it was said only about two witnesses. Then with two witnesses you transgressed “if he does not tell it, then he shall bear his iniquity.” True, there is no liability in human law, but there is in the laws of Heaven. But regarding one witness, “if he does not tell it, then he shall bear his iniquity” was not said. So certainly there is no liability in human law, and the novelty is that there is liability in the laws of Heaven. Why? I do not know—a rabbinic law of “if he does not tell,” whatever the Tummim and Netivot will say. And he continues: “And in the Tosefta of tractate Shevuot it is taught: and similarly one who adjures witnesses regarding a matter worth at least a perutah and they deny it, these are liable for a sacrifice and exempt from the money, as it says, ‘and he shall bear his iniquity.’ And the reason for the matter is that he too is only obligated to testify for him from the law of acts of kindness, for the Torah obligates testimony. And if he does not wish to fulfill that commandment, it is not legally proper to obligate him in money.” This is really excellent, because this is exactly the formulation I was looking for all along. What is he saying here? There is an obligation to testify, right? There is an obligation to testify: “if he does not tell it, then he shall bear his iniquity.” But this obligation is a Yoreh De’ah obligation, not a Choshen Mishpat obligation. That is what he calls an obligation from the law of acts of kindness. There is an obligation—“if he does not tell it, then he shall bear his iniquity”—it is a Torah prohibition. But it is a Torah prohibition of Yoreh De’ah, not of Choshen Mishpat. So then what? If you do not fulfill your obligation, then there is a claim against you—you transgressed a prohibition. But you cannot say that this omission of not testifying is considered an act of direct damage. If the obligation were a Choshen Mishpat obligation, as I explained in Ri”d and Rosh and Rabbenu Yonatan and in the inference from Maimonides, if that were so then the very fact that you did not come testify would be a direct act of damage, like a guardian who did not guard. A guardian who did not guard is considered an act of negligence, direct damage according to Maimonides. Right? If the obligation on me were like a guardian’s, the obligation to come and testify would be like a guardian’s obligation, meaning a Choshen Mishpat obligation—your right to demand that I come testify—then true, I violated the obligation by omission, but even an offense by omission is considered my active act. Nachmanides says yes, but that is not the situation here. The situation here is that it is an obligation from acts of kindness. Where do the laws of acts of kindness appear? In Yoreh De’ah, of course, in the laws of charity, right? It is a Yoreh De’ah obligation, not a Choshen Mishpat obligation. So the fact that I did not perform my obligation—true, I deserve punishment in the laws of Heaven—but you cannot say I am considered a person who damaged. Because this is only omission; I merely failed to save. Here the formulation appears in the clearest way. Then one must understand that even with one witness, what he said above, that “he did him nothing at all,” perhaps means that maybe there is not even an issue of acts of kindness there, because after all this one witness does not have to waste his time when you are not at all certain to benefit from my testimony. The Talmud comes to teach us that he does. That is the novelty. But one could have said that he did not do anything at all, and so even the obligation of acts of kindness is not there. But even with two there is no liability in human law; there is only liability in the laws of Heaven, corresponding to the obligation of acts of kindness. Consequently the liability—if you do not go and testify—is only liability in the laws of Heaven. Then he compares this to the vineyard wall like Meiri: “which is not the case when he gave up on it and did not fence it.” I continue reading; this is the continuation of Nachmanides in the treatise on direct but induced damage. “Which is not the case when he gave up on it and did not fence it, for since he has a monetary obligation to fence it”—did you hear the emphasis?—“since he has a monetary obligation to fence it,” not an obligation of acts of kindness, but a monetary obligation to fence it—“and he gave up and did not fence it, he is liable, for by his giving up he damages him, and his vines are what forbid it, and he causes the prohibition. But one who does not want to testify”—here too he adds “his vines are what forbid it,” which seemingly he did not have to, right? He only says he has a monetary obligation to fence it. It may be that what he means is that since his vines are the ones forbidding, exactly, therefore it is a monetary obligation and not an obligation of acts of kindness. He is the cause. If you come to save someone from damage you did not cause, that is acts of kindness; but to save someone from damage that you yourself are about to cause him, that is a monetary obligation, not an obligation of acts of kindness. Then that is what he said above. “But one who does not wish to testify is exempt, because he has no monetary obligation upon him, only by way of acts of kindness; and if he does not wish to trouble himself and save him, he is not obligated.” What does “not obligated” mean? After all it says, “if he does not tell it, then he shall bear his iniquity.” What do you mean, not obligated? In human law. Exactly. Not obligated to you. Meaning, you do not have a right that I come. Of course I deserve punishment for having transgressed a prohibition, but I do not owe you. And once again, I think this Nachmanides is the sharpest place I found that makes this distinction between when the background obligation is a Choshen Mishpat obligation—then even if I am only passive, by omission, this is still considered an act of damage and I am liable in human law—and when there is an obligation in the background but it is a Yoreh De’ah obligation, in which case if I do something passively then there is no liability in human law. That is what he says. What is this like? Exactly what I said. It is like someone who sees his fellow’s purse being lost and does not save it. Yes, he sees something in the river, could save it easily again, no effort, no danger, nothing—and does not save it. Or someone who does not wish to give a coin of his own to a poor person. You see? Exactly the examples I gave from Yoreh De’ah. “For the court does not obligate him to do so, and here too the court does not obligate him to pay from his home, because the Torah did not obligate him in this except like its other commandments, and this is not a matter of monetary law.” I think this Nachmanides is the sharpest place I found that makes the distinction between the laws of Choshen Mishpat and the laws of Yoreh De’ah. But behind the scenes this appears in Rabbenu Yonatan and in Meiri as well. Only that Rabbenu Yonatan argues that “if he does not tell it, then he shall bear his iniquity” is an obligation in monetary law. Nachmanides does not agree with that. Therefore Rabbenu Yonatan argues that if there were two witnesses and they did not come testify, there would be liability in human law. The logical foundation is the same as Nachmanides’, he just disagrees with Nachmanides in that according to Nachmanides the obligation of two witnesses to testify is only acts of kindness, Yoreh De’ah. According to Rabbenu Yonatan and Ri”d and those with them, it is a Choshen Mishpat obligation—you owe testimony. Okay? That is the dispute, but the underlying principle is the same: when there is an obligation in the background, the obligation becomes one in human law. You see? The same thing in Nimukei Yosef: “for a person is obligated to testify for his fellow only from the measure of acts of kindness.” Kovetz Shiurim also elaborates on this in Bava Batra there, on the vineyard wall. He says the same thing there. Here, you see? Look here, section 13. “What was written, that he is liable for it if he did not fence it, is specifically if his obligation to fence is because of distancing damages. But if he were not obligated to fence except because of the prohibition of maintaining mixed species, he would not become liable in payments.” And this is the language of Nachmanides in direct but induced damage, and then he brings Nachmanides there. Fine? He makes this distinction—and again from Nachmanides—between an obligation of distancing damages, what is called Choshen Mishpat, where you have a right to demand that I distance my damaging things, and therefore if I did not distance my damaging things that is a direct act and I must pay you in human law. Fine. Now a few more completions regarding what I said last time, about whether one witness has the obligation of “if he does not tell it,” an obligation to testify. So we saw there that the Netivot and the Tummim say no. And I said they infer this from the Talmud and from Rashi, and I said that the inference from the Talmud and Rashi is not compelling and in my opinion not even likely. Because if one witness has no obligation at all to come and testify, then why should he pay? If he does not come, after all he is liable in the laws of Heaven. Why should he pay? There is no obligation on him to come and testify. Is it a rabbinic law? Then it should not be called liability to pay in the laws of Heaven. If the rabbis decreed that he should pay, then write that it is a rabbinic liability to pay. “Liable in the laws of Heaven” means there was some Torah prohibition here, only that the court does not collect it, rather it is a liability in the laws of Heaven. That is the dispute over the Talmud. Look at Maimonides. Maimonides says: “A witness is commanded to testify in court regarding every testimony he knows, whether testimony that will obligate his fellow or testimony that will vindicate him, provided he is asked to testify in monetary matters, as it says: ‘and he is a witness, or he has seen or known—if he does not tell it, then he shall bear his iniquity.’” Here Maimonides adds—this is also the source for the Shulchan Arukh we saw—that he must be asked to testify, okay? By the way there are inferences here—okay, we will see that in a moment actually. So seemingly Maimonides is speaking both about one witness and two, right? There is an obligation to testify: “A witness is commanded to testify regarding every testimony he knows.” He does not distinguish here between one witness and two. The Kesef Mishneh says: “One can scrutinize our master’s language, for he wrote, ‘A witness is commanded to testify in court,’ which implies a single witness. And he concludes, as it says, ‘if he does not tell.’ But in the chapter HaKones they bring the verse only for two witnesses, for the verse implies only two. Every place it says ‘witness,’ that means two unless Scripture specifies one, as it says: ‘one witness shall not rise up against a man.’ But for one witness there is no verse.” So true, “if he does not tell it, then he shall bear his iniquity” is written in the singular, but every place “witness” appears it means two witnesses. Therefore Kesef Mishneh explains: “One can say that our master too is speaking only where there are two witnesses in the matter. And he says that each one of them is commanded to testify from ‘if he does not tell.’ But where there is only one witness, our master already wrote at the end of chapter 17 that he is exempt in human law and liable in the laws of Heaven,” in accordance with the Talmud in chapter HaKones. Exempt—like the Tummim and Netivot who say that with one witness there is no obligation to go and testify. So why exempt in human law and liable in the laws of Heaven? Liable in the laws of Heaven for what? After all there is no obligation on you at all to go and testify. That same question I asked them from the Talmud—but you see Kesef Mishneh also learns the Talmud that way. Okay, so this is indeed a strange thing. Then one has to say, apparently—and we did not get to this in the previous class, but in the summary you can read it—that the liability to pay with one witness, the liability in the laws of Heaven, is not because of the obligation to go and testify. You have no obligation to go and testify under “if he does not tell,” but you are considered one who damages by indirect causation. And that is a very big novelty. Because according to this it comes out like this: when there are two of you, you have an obligation to go and testify, right? Then one could explain that “if he does not tell it, then he shall bear his iniquity”—the verse says “he shall bear his iniquity if he does not tell,” and according to Kesef Mishneh it speaks of two witnesses, okay? If so, then this means that with two witnesses the “he shall bear his iniquity” is because of the offense of “if he does not tell.” But according to the Talmud’s conclusion, with one witness too there is liability in the laws of Heaven. Yet concerning one witness, according to Kesef Mishneh, “if he does not tell it, then he shall bear his iniquity” is not written. So what is this obligation to pay? Apparently it is tort liability. Therefore the Talmud says exactly that if it is one witness, then it falls into our four cases in the Talmud of exempt in human law and liable in the laws of Heaven. Because this is payment for tortious indirect causation. And that is very strange, because as Meiri rightly says, what indirect causation is here? There is nothing here; he merely did not save. And you still want to tell me there is no obligation on him to go and testify at all. If there is no obligation on him to go and testify, then everything I explained throughout the class is wrong. I said: if there is an obligation on you to go and testify, then even though it is only failure to save, that is considered a direct act of damage, because fundamentally you had an obligation to go and testify. But now Kesef Mishneh pulls the rug out, he cuts off both legs. He says on the one hand there is no obligation on you to go and testify, fine? And on the other hand there is liability in the laws of Heaven to pay, like indirect causation. How? After all this is only failure to save. I would sharpen it a bit here—and I once saw someone make this inference, I do not remember who—that according to this Kesef Mishneh and the Tummim and Netivot and all of that, if someone sees his fellow’s purse in the river, and it is easy for him to save it, yes? no danger, nothing like that, and he does not save it, he is liable to pay for it in the laws of Heaven. A very great novelty. And your offense is “do not stand idly by your neighbor’s blood,” not because of “if he does not tell it, then he shall bear his iniquity,” but because of the general law to prevent losses to your fellow. Once you did not prevent losses to your fellow, you are liable in the laws of Heaven to pay—or perhaps only that you transgressed a prohibition and do not have to pay, I do not know, maybe. Here it seems to mean must pay; the Shakh understands it as an obligation to pay, and the Shakh is on the Shulchan Arukh. Okay, so here indeed that is what emerges. As for the substance of the matter, I do not think he is right; I would not infer Maimonides this way. Indeed Maimonides says, “A witness is commanded to testify,” speaking both of one witness and two witnesses. And we inferred this from Maimonides above too, that with two witnesses there is liability in human law. With one witness it is liability in the laws of Heaven, because you do not know whether there will be damage or not. Okay? A practical halakhic ruling from all this. What do you mean? Okay. Let us stop here. Fine, I—follow the Moodle or the Dropbox; there I will upload—we also, on this topic too, I’ll tell you what the next topic is. Yes, yes, that is the book—someone asked here, SM asks here—so that is the book. Goodbye, have a good month. Goodbye, have a good month.