Chapter: The Receiver — Lesson 20

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[0:00] Defining negligence and unavoidable accident in the Torah
[8:12] Tosafot: exemption when there is no connection between the negligence and the unavoidable accident
[57:29] Abaye obligates even without a connection between the negligence and the unavoidable accident
[1:04:22] Tosafot on the topic of the willow-hut hiding place
[1:06:34] A dispute about a donkey – mountain and valley
[1:20:27] A paid watchman and a shepherd who goes up to town

Full Transcript

[Rabbi Michael Abraham] Okay, last time we began the topic of “it began with negligence and ended with an unavoidable accident,” and I talked there about several situations that can fall under that heading. One situation is when the negligence caused the unavoidable accident: a watchman left a door open and the animal was stolen, or went out and caused damage. Right? Negligence regarding damage caused by the animal, or negligence regarding damage caused to the animal itself. That counts as pure negligence; full-fledged negligence. A second situation is where I put the money in the woods, where the assumption is that it is well protected against theft, but there is negligence here regarding fire, and in the end thieves came. I called that a negative connection, a negative relation: if I hadn’t put it in the woods it would not have been stolen, even though that place is protected against theft. And that was the second case. A third case is when there is no connection between the negligence and the unavoidable accident. I don’t know, I put an animal in the woods and the animal had a heart attack. So there is no connection; that could have happened even if I hadn’t been negligent. It is not related to my negligence, and that is a third case. And a fourth case is of course where nothing happened to the animal, but here the discussion is purely hypothetical, because even if I am obligated to pay, I’ll take the animal itself and it will constitute the payment. We talked about the fact that if there is no connection between the negligence and the unavoidable accident, then the reason to obligate in such a case is probably a view that says you are liable simply for the fact that you were negligent. And then it follows that you are really liable even if the animal still exists, except that if the animal exists you can, and perhaps even must, return that very animal as payment. But in practice that has no practical significance. Meaning, theoretically one could say that if the animal still exists in such a case, then you are actually obligated to pay, but you can take the animal for yourself. Because from your perspective, you have already become obligated; the animal is no longer—it already belongs to you, and you have to pay. And if you want to take the animal and pay with it—in other words, use the animal as payment—that’s fine. But if you want to take it for yourself and pay money, in principle that could also be fine according to the view that the obligation to pay is for the negligence itself, regardless of what ultimately did or did not happen to the animal. So that is definitely the required conclusion. Now, yes?

[Speaker B] According to that reasoning, where basically you pay and the animal is yours and then you pay according to the animal—what if the animal improved in value?

[Rabbi Michael Abraham] Exactly, that’s the practical difference. So—

[Speaker B] Okay.

[Rabbi Michael Abraham] If the animal improved in value, you won’t pay with the animal—or will it give you change? I understand.

[Speaker B] Because it’s all according to—

[Rabbi Michael Abraham] Like they say regarding a robber, everything is determined according to the time of the robbery, so here too we basically have to say the same thing—we’ll see this today. We have to say that it’s according to the time of the negligence.

[Speaker B] The negligence—

[Rabbi Michael Abraham] The negligence is basically considered some kind of theft. All right? So those are the four cases. I jumped ahead a bit, just so that the picture forming before us would be complete. But now let’s enter the passage in Bava Metzia 36, which is really dealing with a watchman who handed over to another watchman—but for now we’ll ignore that aspect of a watchman handing over to a watchman; that will come up later in our discussion, and then we’ll return to that aspect too. Within that discussion a dispute between Abaye and Rava is brought. I’m sharing it here. “It was stated: he was negligent with it and it went out to the meadow and died in its normal way.” Right? A person was negligent with an animal—notice, I’m just reminding you that this is about a watchman, not someone who caused damage; this is in the laws of watchmen. And I already said that several medieval authorities (Rishonim) connect the discussion of watchmen to the discussion in tort law; Rashi in our passage, and we’ll see other such medieval authorities today. The common view is that there is a connection. We’ll see later whether that has to be so or not, but that’s for later lectures. “It was stated: he was negligent with it and it went out to the meadow and died in its normal way.” Right? So he was negligent, left the door open. The animal went out to the meadow and there it died, just died—not stolen, not lost, it just died. Abaye said in the name of Rabbah: liable. Rava said in the name of Rabbah: exempt. So Abaye and Rava disagreed about this. What is the dispute? Abaye said in the name of Rabbah: liable. “Any judge who does not judge this way is no judge.” First of all, he begins by saying: know that anyone who doesn’t say what I say is an idiot, unfit to judge. In a moment we’ll see that he’s talking about Rava. So he’s not a judge, just an ignoramus. Okay? Why is he so emphatic? “Not only according to the one who says that if it began with negligence and ended with an unavoidable accident he is liable—that he is liable; rather even according to the one who says exempt, here he is liable. What is the reason? Because we say: the vapors of the meadow killed it.” So what is Abaye saying? According to the one who says that if it began with negligence and ended with an unavoidable accident he is liable, I don’t need to explain anything to you. He was negligent the moment he left the door open. Afterwards it died in the normal way; that is a case of beginning with negligence and ending with an unavoidable accident, so he is liable. Abaye’s claim is that here, even the one who says that beginning with negligence and ending with an unavoidable accident is exempt, admits that here he is liable. Why? Because if it died in the normal way, I attribute it to the vapors of the meadow. The vapors of the meadow meaning the air there is humid, heavy air in the meadow area, and that air is what killed it. So what? So this is basically a case of pure negligence. Because this means that one of the reasons you need to close the door properly is precisely so that it won’t go out to the meadow and die there because of the meadow vapors. Just as, I remind you again, the coins that are hidden in a willow hut: if in the end there really had been a fire—not theft—there would have been no dispute there that he is liable. Why? Because against fire it is not protected there; that is exactly why they told you not to put it in the woods, because of the concern for fire. The whole dispute arises only when there was no fire, but thieves came. You were negligent with respect to fire, but what happened in the end was theft. There there is a dispute. But if in the end there really had been a fire, then this is not a case of beginning with negligence and ending with an unavoidable accident; it is all negligence. It is simply negligence: you did not guard against fire, and that is exactly what happened. Abaye says, here too it’s the same thing. In the end, even the one who says that beginning with negligence and ending with an unavoidable accident is exempt agrees that in the first case, the case where there is a positive connection between the negligence and the unavoidable accident, one is liable, because that is not even called beginning with negligence and ending with an unavoidable accident; it is all negligence. So one moment, yes—so that is Abaye’s very emphatic position. Rava said in the name of Rabbah: exempt. And you’ll be surprised to hear that he too adds that emphatic introduction: “Any judge who does not judge this way is no judge.” Abaye himself is an even bigger idiot, in short. “Not only according to the one who says that if it began with negligence and ended with an unavoidable accident he is exempt—that he is exempt.” Right? If you tell me that beginning with negligence and ending with an unavoidable accident is exempt, then of course here he will be exempt, because this is a case of beginning with negligence and ending with an unavoidable accident. “Rather even according to the one who says liable, here he is exempt. What is the reason? Because we say: what difference does the Angel of Death make whether here or there?” He says that here even the one who says that beginning with negligence and ending with an unavoidable accident is liable—the one whose view we follow in Jewish law—even he admits that here he is exempt. Why? Because there is no connection at all between the negligence and the unavoidable accident. You left the door open, but in the end the animal died of a heart attack. It would have died of a heart attack even if you had not left the door open. So what difference does it make? There is no connection at all between your negligence and the unavoidable accident, and therefore in such a case everyone agrees that he is exempt, even the one who says that beginning with negligence and ending with an unavoidable accident is liable. Okay? Good. Afterwards there are two cases where they agree; that is less important for our purposes. In the end it turns out that there is no dispute—the dispute between Abaye and Rava is not connected to the law of beginning with negligence and ending with an unavoidable accident. Right? Even Abaye, who obligates, says that this applies according to all views, and Rava, who exempts, also says this applies according to all views. Why does Abaye obligate? Because this is just a plain case of negligence; it is not beginning with negligence and ending with an unavoidable accident. Therefore there is no dependence here on the dispute whether beginning with negligence and ending with an unavoidable accident is liable or exempt. Rava says he is exempt because this is simply an unavoidable accident. So again, there is no connection here to beginning with negligence and ending with an unavoidable accident; everything is exempt. So what exactly is their dispute? Their dispute is not connected at all to beginning with negligence and ending with an unavoidable accident, but rather to the question of why the animal actually died. Did the animal die because of the Angel of Death—that is, this would have happened to it even if it had remained in the stable—and that is Rava’s view; or according to Abaye, no, the animal died because of the meadow vapors, and therefore the conclusions follow. Meaning in the end, their argument is apparently a factual argument. It is an argument about why the animal died. It has nothing to do with beginning with negligence and ending with an unavoidable accident; that is really what each of them is claiming. These emphatic statements, where each says of the other that he is no judge and has no idea what he is talking about, are a little strange when their dispute is about an assessment of reality. So why is it so obvious to you? And especially—you know, there are people who want to claim that sages never disagree about facts at all. Because about facts you cannot say “these and those are the words of the living God”; if this one was right, then the other one was wrong. Therefore it is common in yeshivot to say that there is no dispute about reality, which is nonsense of course. There are many disputes about reality. But here it really does look like a dispute about reality, and when it is a dispute about reality it is even harder to understand the certainty of Abaye and Rava’s statements. Each one is so sure. It’s not some halakhic statement where you can say, what, it’s obvious, every judge understands this. This is an assessment of reality. Either you are right, or what—are you such a distinguished physician or veterinarian? I mean, how can you be so sure of your assessment of reality? Now incidentally, yes, the common claim is that with a dispute about reality one cannot say “these and those are the words of the living God,” because “these and those” is understood to mean both are right, and in a dispute about reality it cannot be that both are right. Now one can quibble about this, because it is not clear that this is really the meaning of “these and those are the words of the living God.” But I spoke—you attend the Wednesday lecture? There I talked a little about it.

[Speaker C] No, I don’t attend, I’m learning something else.

[Rabbi Michael Abraham] Fine, never mind, we won’t get into that now. In any case there is another interesting point here. I once thought that in certain senses maybe one could say that all disputes are disputes about reality. Because in the end the question is: what did the Holy One, blessed be He, say to Moses at Sinai? So even when you disagree with your colleague, with another sage, in a halakhic dispute, what you are really asking is what the Holy One, blessed be He, said to Moses at Sinai. Now what He said at Sinai—either He said this or He said that. Apparently that too is a dispute about reality. Well, here one can of course quibble and say that He said nothing at Sinai; we are asking what Jewish law ought to be even without it having been said at Sinai. Especially Maimonides, who says that with a law given to Moses at Sinai no dispute ever arose. So if there is a dispute here, then this is apparently not a tradition from Sinai. But I’m saying that even apart from whether it is a tradition from Sinai, even if it is not a tradition from Sinai, still the question is what was said there—regardless of whether it was transmitted to me or not. The question is what was said there, or what the Holy One, blessed be He, intended. Forget what was said or not said—what did He intend? That still seems to be a factual question. Here, okay, one could say “like a hammer that shatters a rock” and say that He intended both things, I don’t know, there are all kinds of pilpulim on this. I don’t agree with them, but one can quibble about that. But there are situations where it is harder to say. For example, in the Talmud in Shevuot 26, the Talmud brings a dispute between Rav Ami and Rav Asi about what Rav said. Both say something in Rav’s name. “A person regarding an oath, excluding…” sorry, they have some dispute there in the laws of oaths, I think, and basically I’m not even sure it is in the laws of oaths. The context of the discussion there in the passage is about the laws of oaths, because each of them swears that Rav said—one swears that Rav said X and the other swears that Rav said not-X. There too both are very emphatic, and there too, exactly like here, the certainty is not only in the reasoning, but after all both are reporting a statement in the name of the same sage. Here for example Abaye and Rava speak in the name of Rabbah, and there Rav Ami and Rav Asi speak in the name of Rav. Now what Rav said—forget the Holy One, blessed be He, at Sinai and what He intended—but what Rav told them a few days earlier, or what Rabbah told them a few days earlier, that is already really a fact. So there it is indeed hard, first, to say “these and those are the words of the living God,” and second, the certainty is especially interesting. I mean, you are so certain about what Rabbah said yesterday when your study partner is equally certain and claims that Rabbah said the opposite. Now there they swore—not just spoke emphatically, they swore. Each one swore to what he claimed Rav had said, and these were two opposites. Then they go to Rav—the Talmud of course does not tell us what Rav Ami said and what Rav Asi said because that would be slander—but in the end they go to Rav, and Rav told them, never mind, he told them what he had said, and then the other one asks him: wait, so I swore falsely? And he says to him: no, “a person regarding an oath, excluding one under compulsion.” You are considered under compulsion. Why are you under compulsion? Because that is how you remembered it. Meaning, you simply remembered that I said it that way, you were sure—so what can you do? You are under compulsion, and “a person regarding an oath, excluding one under compulsion.” It is just an interesting side point whether that is called compulsion or inadvertence, and whether there is any difference between the two. Those two things. But let’s return to our topic. What is happening here? Both express in a very emphatic way a position about what Rabbah said—not their own position, but what Rabbah said. Now it seems to me that one explanation of how such a sharply polarized dispute could exist about what both of you heard from the same person—I don’t know, maybe a few days earlier, maybe a year earlier, but not all that long before. We are not talking about some long-standing tradition. They were both students of Rabbah. Abaye grew up in his house. So I think here the certainty—this is first of all just a side remark, not connected to our issue, but just about the passage; this passage bothers you a bit when you read it. It seems to me that the certainty is what caused the whole story. Since this thing is so obvious to you logically, therefore it is obvious to you that Rabbah said this, because whoever says otherwise is no judge. Now clearly Rabbah was a judge; both of them agree that Rabbah was an outstanding judge. Okay, so an outstanding judge cannot say otherwise. It is like the Shakh. The Shakh has these long discussions, like a football stadium, where he takes all the medieval authorities and explains to you why all of them say what he thinks—which is usually the minority view. Why? Because it is obvious to him that none of them said nonsense, and what he says is surely right, so apparently they all said what he says. Now I’m joking about it, but actually many times that is how we work, and it is not really something to laugh at; it is actually true. When we interpret a source, a text, or a person, or whatever it may be, reasoning also takes part in the interpretive process. Clearly when we interpret what he said or try to understand what he said, we also use reasoning, not just memory, to understand what he said—not merely to hear what he said and quote it. When you cite a ruling in someone’s name, it is not just a quotation; often there is also some interpretive dimension here. Now Rabbah apparently said something that could perhaps be understood in two directions. Abaye and Rava, each of whom is so emphatic in his position, interpreted Rabbah in a way that fit what in his eyes was the obvious truth, and that is how this dispute arose. Meaning, Rabbah probably said something that was not unequivocal. No? Let’s say, I’m inventing something extreme, Rabbah said: well, this law is obvious, what is there to discuss, simple. That’s it. But he didn’t say what the law is. He said: the law is obvious, there is nothing to discuss. Now Rava and Abaye ask themselves: what is so obvious here? What should the law be in such a case? So Abaye says: the law is obvious—obviously he is liable, the meadow vapors killed it. So if that’s the case, now I tell you that Rabbah holds that here one is liable, because he said that the law is obvious, and what is obvious? This is obvious. And Rava, to whom it is obvious that he is exempt, because “what difference does the Angel of Death make whether here or there,” says: Rabbah said it is obvious, there is nothing to discuss—what is obvious here at all? Only my reasoning can be obvious. I’m just sketching one possible scenario, of course; it is not really a decoding of what happened there, but I assume it was something like that. The dispute is basically grounded in the fact that once you are very emphatic about your own reasoning, then when you hear a position from someone—certainly from someone you respect—you will tend to interpret him in a way that fits your reasoning. And that is how this extreme dispute arises about what Rabbah said, which on the face of it is a dispute about facts but is saturated with each listener’s interpretation. Okay, I’ll close the remark.

[Speaker D] Wait, when I learned this passage in the past, I remember I had a simple way to explain why this is not a dispute about reality. I’m trying to reconstruct it now. I’m not sure it’s a hundred percent, but I think it is.

[Rabbi Michael Abraham] Try, and if not I’ll complete it, because I also think it isn’t.

[Speaker D] Okay. So like this: the question is what counts as the Angel of Death. Let’s start with the meadow vapors. What does it mean that the meadow vapors killed it? How can you know such a thing with certainty? Who told you it was the meadow vapors? Did you perform an autopsy? And I’ll ask further: what does it mean “what difference does the Angel of Death make whether here or there”? By what means did he kill it? After all, the Angel of Death also uses things of the sort of meadow vapors.

[Rabbi Michael Abraham] That’s an interesting question. I’m not sure.

[Speaker D] Okay, no, that’s their view.

[Rabbi Michael Abraham] I think like you, but as for their conception, I’m not a hundred percent sure.

[Speaker D] No, so let’s go with their conception. I do want to go with their conception. Meaning, they understood that one can die without a cause, and that’s this Angel of Death. Yes. And now I ask even more strongly: so how do you know whether it died without a cause or from the meadow vapors? It’s even harder. Maybe it would have died in any case. And that’s the argument: in such a borderline case, can you attribute it to the fact that it would have died anyway, or not? Will we find some very unpopular cause like meadow vapors and say that’s why it died?

[Rabbi Michael Abraham] I completely agree, I completely agree. I think that in general many disputes that look like disputes about reality are not really disputes about reality.

[Speaker D] Fine, that’s the classic yeshiva line you mentioned earlier.

[Rabbi Michael Abraham] No. The classic yeshiva line is that there are no disputes about reality. Now there are places where it is clear that there are—meaning, there are disputes about reality. But there are places that really look like disputes about reality and the truth is that they are not. Meaning, the yeshiva statement is not always wrong. I claim that that statement, as a sweeping claim, is not correct. But I do think—and by the way I also understand the tendency to say it—not because of “these and those.” Rather because usually with reality, you are estimating reality. But why create a dispute about reality if you can explain it not as a dispute about reality? There is no reason to attribute it to a dispute about reality. All right, so it’s not… it could be. But it’s not… What’s the point? The point is that many times, for example, the argument is about the question, say, whether there was—I don’t know—a door that was locked one turn. One could argue whether that is negligence or not. Now is that argument a dispute about reality or not? You could say it is a dispute about reality. The question is whether a bull’s kick breaks through a door that is locked one turn, that is turned once. But after all it is much more reasonable to say: it breaks through with such-and-such a percentage chance. Now the question is where the threshold of negligence lies. Is the threshold of negligence below that percentage or above that percentage? And that is already a dispute in Jewish law, not in reality. Now in our case it is even easier. Because in our case neither of them performed an autopsy. They do not really know the cause of the animal’s death. Rather, what do we have? We see that it died, and now the question is what to attribute it to. Now as to what to attribute it to, there are various possibilities. You can attribute it to the meadow vapors, you can attribute it to the Angel of Death, or to who knows what, to other causes. Maybe the Angel of Death is without a cause, maybe it is a cause—that can be discussed, what their conception there was, I don’t know. In any case, once you are discussing the question of what to attribute it to, this is apparently a dispute about reality, but you understand that it is not a straightforward dispute about reality. Meaning, it is true that in reality itself, in the end either it died from the meadow vapors or it did not die from the meadow vapors. That may be true. But clearly the dispute here is a dispute about the question of what I am allowed to attribute it to, and that is no longer a dispute about reality; it is a dispute in Jewish law. Even though the question we are clarifying is a factual question—did it die from the meadow vapors or did it not die from the meadow vapors? But since the real question is not accessible to us, the argument is about what a judge is supposed to do in such a case. That is after all what he says: “Any judge who does not judge this way is no judge.” Meaning, the question is not what the reality was there, but what a judge is supposed to do when standing before uncertainty. That is really the question. And Abaye argues: look, if you are standing before uncertainty, then even if you have one possible way, say for example, if you have one possible way to attribute it to a cause—“the meadow vapors killed it”—and the second possibility says that it was without a cause, why assume it happened without a cause when you have the option to attribute it to a cause? Therefore he says, any judge with his head on his shoulders should attribute it to the possible cause. He is not claiming that it certainly was so. But he says, if the alternative is that there is no cause, then why choose an illogical alternative when you have an alternative that is not necessary but is reasonable and plausible? That is Abaye. And Rava, against him, says—just a second, David—Rava says, look, maybe in fact exactly because of what David says, why not say here “the burden of proof rests on the claimant”? Rava is basically arguing: you, the depositor, want to extract money from me, the watchman. If so, it is enough that there is a possibility that the Angel of Death killed it. Whether he thinks that the Angel of Death is also a cause or that it is without a cause doesn’t matter, but the Angel of Death also kills animals sometimes; it doesn’t matter for now whether that is called a physical cause or a spiritual cause, but it too is a cause. Since that is so, you do not have sufficient grounds to extract money from the watchman. The burden of proof rests on the claimant. Abaye argues that if I have a plausible explanation and the other alternative is no explanation, or some kind of mystical explanation, that is enough to extract money. That’s the claim. Therefore I am allowed to attribute it to the explanation that the meadow vapors killed it, and that’s that. And Rava argues not so. Rava says, what are you talking about? The Angel of Death also operates here and there. So since that is so, you cannot extract money. By the way, it somewhat resembles the discussions in the Talmud in Yevamot, page 64 I think, where the Talmud discusses presumptions established by three occurrences. Whether “the spring caused it” or not. There are all kinds of strange cases there that happen three times. For example, if three children died because of circumcision, or whatever it may be, then the fourth son is not circumcised. Or the third or the fourth—that is a dispute there among the tannaim. So why is he not circumcised? The claim is that apparently there is some cause there that makes these children die because of circumcision. Now the question is what that cause is. Or perhaps there is no cause and it is just chance. The famous Rabbi Chaim, yes, that up to three times it can be chance, but three times is no longer chance and there must be a cause. Now the question is how remote the cause can be and we will still attribute it to that. So there is the Mekor Chaim in the laws of Passover, and other halakhic decisors, who say that although we rule that after three times we establish a presumption, that is only in a case where there is some non-negligible possible explanation to offer. So you have no indication that this is the explanation, but the very fact that it happened three times is the indication. All right? It reminds me of another story—one moment, I’ll tell you. But other halakhic decisors say no. Meaning, if the explanation is extremely weak, or you have no logic at all, you are just making something up, then no—we do not establish a presumption on that basis. If you have no way at all to explain it, then we do not establish a presumption. Even according to the law that after three times there is a presumption. Why did I remember this? I remembered the well-known story of Kishon, Ein Kamonim, the fox in the chicken coop. So Kishon says there—there was some fellow there, what was that guy’s name, I forgot the hero of the book—so he had worked for the Histadrut for many years and went to live in the north of the country and built himself a magnificent villa there with a swimming pool and horse stables. Income tax investigators came to him and asked him: tell us, where did you get all this money from? And he said: listen, you won’t believe the story, but this is what happened. One night I dreamt that Elijah the Prophet came to me and told me to go to a certain place in the Galilee, and there is a tree there on top of the hill; go a hundred steps north, a hundred steps east, dig there, and I would find a treasure. Fine. I went at midnight, exactly at midnight, to that tree, a hundred steps north, a hundred steps east, dug, and indeed found a chest full of diamonds and precious stones and pearls, and with that I built my villa. So they asked him: fantastic story. Do you have any proof for this story? And he said: look at the villa—how would I have a villa if that had not happened? Meaning, that is his proof. Now this story is a wonderful story, because many, many arguments, both legal and philosophical, can be translated into this story. Like Bertrand Russell’s celestial teapot and many, many other things are equivalent to this story. Although it sounds terribly stupid to us, one has to think for a moment to understand why it is stupid, and then after thinking—which most people probably do not do—you can see that it can be applied to many arguments and show that people often say nonsense. Now what is going on there—why is it stupid? It is stupid because there is an alternative explanation. What is the alternative explanation? That he embezzled money. After all, that is why the investigators came to him, right? So what is preferable to assume: that he embezzled money, or that whole story with Elijah the Prophet and the treasure? So I suppose that as a rational creature it is more reasonable that he probably embezzled money. But now let us assume that he had no access to any sum of money at all, in any way, from which to embezzle. I have no other explanation for how the money reached him. In that case I would consider believing his story. Meaning, everything is a matter of comparing alternatives. And here too I am saying the same thing. Meaning, let us say a three-time presumption, or the meadow vapors versus the Angel of Death. The Angel of Death is this mystical story; it died without a cause. Abaye says: if I had no alternative, maybe I too would accept your strange thesis, but I do have an alternative—maybe the meadow vapors killed it. Yes, maybe he embezzled money. Therefore I do not accept this thesis of the Angel of Death. Rava argues that although this thesis is a remote thesis, for extracting money that is enough for us still to say that you have not met the burden of proof. Okay, back to our matter. So basically it turns out like this—I return to this—so basically it turns out that the dispute between Abaye and Rava is not about the question, not connected to the question, of whether it is more common or of beginning with negligence and ending with an unavoidable accident. It simply concerns the cause of death, or alternatively what death can be attributed to. Okay? Not the factual issue but the legal-halakhic issue. Now let’s look at the Rif. “There are those who say that the Jewish law follows Abaye”—this is basically Rabbenu Chananel. Rabbenu Chananel rules like Abaye. “And even though we hold that wherever they disagree, the Jewish law follows Rava over Abaye, here the Jewish law follows Abaye, because it is stated explicitly that the Jewish law is that if it began with negligence and ended with an unavoidable accident he is liable.” And this authority whom the Rif brings—let us call him Rabbenu Chananel already—says that the Jewish law follows Abaye. The rule, after all, is that in disputes between Abaye and Rava the Jewish law follows Rava, except for the cases of Ya'al Kegam. But here their dispute is a dispute about the law of beginning with negligence and ending with an unavoidable accident, and in that dispute we saw in the Talmud in that Bava Metzia passage that we saw last class, that the Jewish law is that if it began with negligence and ended with an unavoidable accident he is liable. So in that dispute the Jewish law follows Abaye. That is his claim. Here, before I continue, that is a somewhat strange statement, but before I continue—notice the idea behind these words. We have a rule that in disputes between Abaye and Rava the Jewish law follows Rava, except for Ya'al Kegam. Now here we have a passage that is not connected to Ya'al Kegam. Rabbenu Chananel says: I can rule even in this passage like Abaye if I have some other passage that gives the ruling anonymously in accordance with him. The interesting question is: then why didn’t they bring this in Ya'al Kegam? Why didn’t they say Ya'al Kegamf? Right—the peh for “he was negligent and it went out to the meadow and died normally.” So the peh should be there too; there should be seven cases. If they summarize six cases, then apparently it’s six, no? What kind of thing is this, that there is just some anonymous Talmudic passage ruling like Abaye, and therefore we rule like Abaye? Then why didn’t they bring it within the framework of the six cases? On the contrary, I would derive from here that the Jewish law follows Rava, and therefore if it began with negligence and ended with an unavoidable accident he is exempt, and the passage on Bava Metzia 42—the passage we saw in the previous class—is not the law in practice. That is one point. Second, I want to note that really with these rules—today I’m a bit into methodological matters—these rules, “the Jewish law follows so-and-so over so-and-so” and so on, are rules that one must understand exactly what they mean. They can be understood in two ways. They can be understood as guiding rules or as summary rules. A guiding rule means: this is an instruction. Every place you come to, use this rule and thereby you will know what the law is. A summary rule says: I ruled in all the places the way I ruled, and now I look at the result—that is, say the amoraim ruled as they ruled—and now I look at what came out, and it turns out that the Jewish law follows Rava except for six cases, so I summarize that in a rule. Not that I ruled according to the rule; on the contrary, the rule was created after I ruled all the cases, each one separately. Where would there be a practical difference? In a passage where, say, let’s put it this way: if this rule is a summary rule, then this rule is basically telling me: look, in every dispute between Abaye and Rava the ruling has already been made, and only in those six is the Jewish law like Abaye, and in the rest it is Rava. According to that, it is very hard to accept here another ruling like Abaye. The Talmud already ruled in all the cases except six; why didn’t it bring this case? But if I understand that this rule is a guiding rule, then it may work like this: wherever you don’t know the law and have no position of your own, use this rule. But if you have some halakhic or other consideration—it doesn’t matter—you have your own position, then act as you think; it has nothing to do with rules. The rules are intended only for someone who has no clear position of his own. If you want not to choke, hang onto a big tree. So they tell you: hang onto Rava. If I don’t want to choke, I have my own position, I don’t need anyone to hang onto, so I go with my position. In this way one can understand, for example, why in disputes between Beit Shammai and Beit Hillel we find in the Talmud in quite a few places rulings like Beit Shammai. A heavenly voice came out and said that the Jewish law follows Beit Hillel, and the Talmud says that the words of Beit Shammai in the place of Beit Hillel are not even a mishnah. And even to be stringent in accordance with Beit Shammai—the Talmud says in Sukkah there—even to be stringent in accordance with the words of Beit Shammai you deserve punishment for yourself for having been stringent upon yourself in accordance with Beit Shammai. We are talking about stringency, not leniency. What is the problem? I also did it in accordance with Beit Hillel; I just wanted to be stringent and satisfy Beit Shammai too. No. Meaning, there is a very emphatic ruling here in accordance with Beit Hillel. And then you can find, for example at the beginning of Beitzah, several mishnayot that are from the leniencies of Beit Shammai and the stringencies of Beit Hillel, where you can see that in several places they rule like Beit Shammai. There are other places too. Why? I think the simple explanation is that when the heavenly voice told us to rule like Beit Hillel against Beit Shammai, it was speaking to someone who has no position of his own. You are looking for whom to rely on? If you rely, rely on Beit Hillel. If you have your own position, then you are not relying on Beit Shammai. You are simply doing what you think. No problem. Someone who has no position of his own looks for a decisor to hang onto. But someone who has a position of his own is supposed to do what he thinks. So there, what is the problem? If he thinks like Beit Shammai, then just because Beit Shammai also think like him, now he is forbidden to do it? If I happened to think this way on my own, that is what I would do. Now Beit Shammai also think like me, so now I’m forbidden to do it? Why not? They tell me: if I have no position and I ask, okay, then I am looking for an objective halakhic ruling that obligates all who have no position of their own—which side should they rely on? They tell me: Beit Hillel. Okay, so in our context too, Rabbi Elchanan Wasserman writes—there is a passage in Eruvin around page 46 with several pages of such rules of deciding between tannaim and amoraim, mainly tannaim, these rules of decision. Now the Talmud brings there—I think it was Rabbi Yosei, Rabbi Shimon, and Rabbi Yehuda, I think—and the Talmud assumes transitivity there. Meaning, it says that if between Rabbi Yehuda and Rabbi Shimon the Jewish law follows Rabbi Yehuda, and between Rabbi Yosei and Rabbi Yehuda the Jewish law follows Rabbi Yosei, then between Rabbi Yosei and Rabbi Shimon the Jewish law follows Rabbi Yosei. Now if this were a summary rule, so argues Rabbi Elchanan, if it were a summary rule there would be no place for that transitivity. Because no one said that Rabbi Yehuda is more correct than Rabbi Shimon or wiser than Rabbi Shimon, or that one should always follow him. Rather, it is simply what came out after all the disputes were decided; for some reason this is how it turned out. Therefore there is no necessity for transitivity to be preserved. It could be that Rabbi Yosei’s blind spot is precisely when he contends with Rabbi Shimon, even though against Rabbi Yehuda he is always right, but against Rabbi Shimon there is some point that Rabbi Shimon always grasps better. I’m just saying. Meaning, once you are not assuming some logical rule but rather a summary rule, fine, who says that transitivity has to be preserved? Once transitivity is assumed, that means that this rule is probably a guiding rule and not a summary rule.

[Speaker D] But it’s also not all that reasonable that it would be a summary rule, with all due respect. What, again?

[Rabbi Michael Abraham] I’m saying that, quite apart from the fact that in this case all the disputes happened to come out the same way as all the other disputes, yes, it’s very, very strange. Right. There’s quite a bit to comment on in these matters; I’m only drawing your attention to this point, that here the Ra"ch is essentially ruling like Abaye in a place where—look, the formulation is even more precise. It’s not only that they tell me that the Jewish law follows Rava in his disputes with Abaye, but they also list all six exceptions. And now I suddenly create a seventh exception. Fine, if they had just said the Jewish law follows Rava, okay, then in one or two cases that I find I might still rule like Abaye. In general the Jewish law follows Rava, but in one or two cases where I have strong considerations I’ll rule like Abaye. But here the Talmud also brought all the exceptions where they rule like Abaye, which is the most precise formulation possible. How can it be that in such a case we would rule like Abaye? It’s really strange. According to the Ra"ch, it seems this rule is a guiding rule even when it is formulated together with the exceptions—which is really odd. Fine, and those are just remarks. For our purposes, that’s what the Ra"ch claims. By the way, among the later authorities and the writers of legal rules, after all there are other places where they rule like Abaye. For example, regarding "do not form factions," Maimonides rules like Abaye about two religious courts in one city. And regarding "if one did it, it is ineffective," again there is a dispute in Maimonides, but there are commentators on Maimonides who claim that he ruled like Abaye in the topic of "if one did it, it is ineffective." So there are those who want to argue that this rule—that we follow Rava against Abaye—applies when they disagree with each other directly. But when they disagree about the opinion of someone earlier, in this case Rabbah’s opinion, or about the opinion of tannaim or whatever, there this rule was not said. Where did that come from? God knows. Inventions of the later authorities in order to preserve the rule in its place. And I say it’s much simpler not to preserve the rule in its place, but to understand that it’s a guiding rule, yet one can rule otherwise if one has strong considerations—then rule otherwise. Then there’s no need to manufacture sub-rules that patch up the rule, when they have no source and there’s no reason to assume them. Fine, moving on.

In any case, that is what this "there are those who say"—we’ll call him the Ra"ch now—claims. Okay? The question… the big question is: what does he want from us? What’s the connection at all? We saw in the passage that Abaye and Rava do not disagree about the law of a case that begins in negligence and ends in an accident beyond one’s control. On the contrary, each of them explains to us that the law he states does not depend on whether a case that begins in negligence and ends in an accident is liable or exempt. The dispute is, as we said before, what to attribute the cause of death to. So why, from the fact that the Talmud on page 42 rules that a case beginning in negligence and ending in an accident is liable, does the Ra"ch say we must rule like Abaye? It makes no sense; it goes against the Talmud.

It seems to me that what really needs to be said here is that the Ra"ch apparently read the Talmud differently. And even that is still somewhat forced, but apparently that’s how he read it; maybe he even had a slightly different textual version. Abaye essentially says—the style really is like this—"It is not needed according to the one who says that a case beginning in negligence and ending in an accident is liable…" Maybe I’ll open it here, I’ll share it again, let’s go back for a moment to the wording of the Talmud. Here—this is Abaye: "It is not needed according to the one who says that a case beginning in negligence and ending in an accident is liable, for then he is liable; rather, even according to the one who says exempt, here he is liable. What is the reason? Because we say: the swamp air killed it." What does that mean? According to the one who says that a case beginning in negligence and ending in an accident is liable, obviously here he is liable. Why is he liable? Because it began in negligence and ended in an accident. According to the one who says that a case beginning in negligence and ending in an accident is exempt, here he is liable because the swamp air killed it. But the one who says that a case beginning in negligence and ending in an accident is liable certainly rules here that he is liable—not liable because the swamp air killed it, but liable because it began in negligence and ended in an accident. His claim is that even according to the one who says exempt, here one could still say he is liable because the swamp air killed it.

And notice: I inserted the words "could still be." Because as I prefaced earlier, the discussion is really about what to attribute the cause of death to. We don’t actually know what happened here. So it may be that what Abaye is really saying is: in fact I rule that he is liable because this is a case beginning in negligence and ending in an accident, which is liable. I’ll tell you more than that: even according to the one who says exempt, there is room to say he is liable. And since the Jewish law is that he is liable, and even according to the one who says exempt there is also a side that says liable, then obviously someone who judges otherwise is not a judge. He is not claiming with certainty that the swamp air killed it and thereby disconnecting this from the topic of beginning in negligence and ending in an accident. Rather, he is saying: basically I hold him liable because of beginning in negligence and ending in an accident. And in fact I tell you that according to the one who says liable, the discussion is over. Even according to the one who says exempt, it is not clear that here he would be exempt. That’s what Abaye is saying.

And one has to remember: although it says "even according to the one who says exempt, here he is liable," in Talmudic language often "here he is liable" means "here he could be liable." It’s a rebuttal. Meaning, you can say he is liable even according to the one who says exempt, especially since that is an opinion not followed in practice. So I say: according to the one who says liable, which is the ruling in practice, here he is liable—and with that I’ve finished the discussion. I’m just adding in parentheses: know that even according to the other view, it could be that here he would be liable. So what do you even want from me, Rava? You’re not a judge if you say otherwise. That’s basically what Abaye claims.

Now the problem is somewhat with Rava, because Rava gives the mirror image, right? What does Rava say? "It is not needed according to the one who says that a case beginning in negligence and ending in an accident is exempt, for then he is exempt"—and that is not the opinion followed in practice—"rather, even according to the one who says liable, here he is exempt. What is the reason? Because we say: what difference does the angel of death make whether here or there?" Now according to the Ra"ch it comes out that Rava holds like the one who says that a case beginning in negligence and ending in an accident is exempt. So the first opinion he brings is actually because a case beginning in negligence and ending in an accident is exempt, and therefore he exempts here as well. He is only saying: know that even according to the one who says liable, I have a rebuttal. It is not certain that the swamp air killed it, because perhaps it is "what difference does the angel of death make whether here or there." So he attributes it to the angel of death, perhaps for the other opinion, but that is not important to him, because the exemption is an exemption due to the principle that a case beginning in negligence and ending in an accident is exempt, because that is how he rules.

[Speaker D] I didn’t understand why we have to read it that way.

[Rabbi Michael Abraham] Because according to the Ra"ch, the Ra"ch rules like Abaye. Because we hold in practice that a case beginning in negligence and ending in an accident is liable. Liable. But in the Talmud we see that the dispute between Abaye and Rava is not connected to beginning in negligence and ending in an accident.

[Speaker D] Right, but I didn’t understand—read it the way you read the first half, only reversed: that he really means exempt for the real reason of "what difference does the angel of death make whether here or there." And by the way he notes also, according to the one who says exempt, that there is another opinion that exempts for a different reason.

[Rabbi Michael Abraham] So now I ask: then why rule like Abaye?

[Speaker D] We rule like Abaye here because of "what difference does the angel of death make whether here or there."

[Rabbi Michael Abraham] No, because a case beginning in negligence and ending in an accident is liable. No, but—

[Speaker D] Also—

[Rabbi Michael Abraham] Rava agrees.

[Speaker D] Even though a case beginning in negligence and ending in an accident is liable.

[Rabbi Michael Abraham] But Rava also agrees that it is liable.

[Speaker D] Right, but here Abaye argues that despite the fact that it began in negligence—

[Rabbi Michael Abraham] Abaye argues—but in disputes not with Rava, the Jewish law follows Rava. Right. So what forces you to rule like Abaye? Because we hold in practice that a case beginning in negligence and ending in an accident is liable. So what? Rava also agrees that that is the practical law.

[Speaker D] Just a second—if he is liable and not… the calculation here is confusing me a bit. If you are asking why in the end he rules that he is liable.

[Rabbi Michael Abraham] After all, he has a compelling reason to rule like Abaye. Why? He himself explains why.

[Speaker D] There is a compelling reason because—

[Rabbi Michael Abraham] The Talmud rules that a case beginning in negligence and ending in an accident is liable. But Rava also agrees with that. So what is the compelling reason to rule like Abaye?

[Speaker D] No, okay, Rava—how do you know that Rava agrees with that?

[Rabbi Michael Abraham] Because that is how the Talmud rules in practice, and Rava himself says that even according to the one who says that a case beginning in negligence and ending in an accident is liable, here he is exempt.

[Speaker D] No, I’m getting mixed up here between Rabbah and Rava.

[Rabbi Michael Abraham] No, no—Rava, Rava.

[Speaker D] Yes, I understand. Okay. The one who disagrees with Abaye, you’re saying, also agrees here.

[Rabbi Michael Abraham] He says so.

[Speaker D] No, he didn’t say that. He didn’t say liable; he said that even according to the one who says liable, here he is exempt.

[Rabbi Michael Abraham] Exactly. So you have no reason at all to assume that he does not agree with that opinion. So why rule like Abaye? Rava also fits with that opinion.

[Speaker D] No, but it’s like how you read it earlier. He did mean to say it—he did mean to say that that is how he rules.

[Rabbi Michael Abraham] So if it’s like I said earlier, then if it’s like I said earlier, what is your comment?

[Speaker D] No, because I didn’t understand. You said that it’s fine to read the first half that way—you have no problem explaining the Ra"ch—and you get tangled up when you read the last part.

[Rabbi Michael Abraham] So I’m saying, I explained how I read it anyway. So I say: apparently the Ra"ch understood the Talmud this way: Rava says, "It is not needed according to the one who says that a case beginning in negligence and ending in an accident is exempt, for then he is exempt"—that is the one I rule like in practice. Right. By the way, know, Abaye, that even if you rule that a case beginning in negligence and ending in an accident is liable, still here he would be exempt because of "what difference does the angel of death make whether here or there"—perhaps.

[Speaker D] Right. And now the Ra"ch gets tangled up when you read the end. Up to here excellent, I understood that explanation—but how do you get tangled up when you said that when you read the…

[Rabbi Michael Abraham] That is the end; I explained it.

[Speaker D] That’s how I read the end.

[Rabbi Michael Abraham] Ah, okay, fine. So simply, on the face of it, it is problematic because Abaye makes a rebuttal within a view that is not the practical law, while Rava makes a rebuttal within a view that is the practical law. Right. So no—Rava also makes the rebuttal within a view that is not the practical law according to his own position, because he rules that a case beginning in negligence and ending in an accident is exempt. And the rebuttal he makes is within the position that a case beginning in negligence and ending in an accident is liable.

Then indeed it comes out—and I remind you of the introduction I gave, that we are only attributing, we are not certain whether it was the angel of death or the swamp air; that helps me a lot here—because basically what Abaye and Rava are arguing are only possibilities. You ask me what the practical law is? The law is determined by the rule of beginning in negligence and ending in an accident. I’m just telling you in parentheses: know that here there are also some considerations that could lead even the holder of the other opinion to agree. But that is only a possibility; it is a rebuttal. The actual ruling is indeed because of the law of beginning in negligence and ending in an accident. Okay? Apparently that is how one has to read the Talmud according to the Ra"ch. Let’s stop for three minutes—it’s already more than halfway through the lesson—and then come back.

[Speaker E] Okay. Let’s come back.

[Rabbi Michael Abraham] I’m continuing with the Rif. So he brought the Ra"ch’s view, who rules like Abaye, because since we hold that in practice in the case of the willow-hut he is liable. But the Rif himself disagrees. "And we do not hold this way; rather, the Jewish law follows Rava, for we hold that wherever Abaye and Rava disagree, the Jewish law follows Rava except for the six Ya"al Kegam cases." Yes, so basically the Jewish law follows Rava. What, did you forget? There was a rationale. We rule that a case beginning in negligence and ending in an accident is liable; after all, the Ra"ch also knows that the rule is that the law follows Rava except for Ya"al Kegam. So he says: "And even though we hold that a case beginning in negligence and ending in an accident is liable, that is only where he guarded it in a way that was protection with respect to one thing and negligence with respect to another thing, and there was another way such that had he done it, the accident would not have reached him. Therefore, even though an accident happened, he is liable, because we say: had he not been negligent with respect to that other matter, the accident would not have reached him."

Yes, what is the Rif saying? When are we speaking about a case beginning in negligence and ending in an accident? When a person was negligent regarding one matter, and had he not been negligent, then the accident—which was something else—would not have happened. Exactly what I explained about the willow-hut. "As in that case where someone deposited money with his fellow, and he hid it in a hut of willow branches, and it was stolen. Rav Yosef said: even though with regard to thieves that is considered guarding, and with regard to fire it is negligence, a case beginning in negligence and ending in an accident is liable. For if he had buried it in the ground, as Samuel said—money has no protection except in the ground—it would neither have been stolen nor reached by fire. Therefore he is liable for the theft, even though it was an accident." After all, he was under compulsion, because regarding theft it was guarded. "For had he not been negligent with respect to fire"—if he had hidden it in the ground, and then it would have been protected regarding fire—"then it also would not have been stolen; he would not have suffered the accident." And for that same reason we say that a case beginning in negligence and ending in an accident is liable, because that accident of theft comes as a result of the negligence regarding fire, and therefore he is liable because he did not guard it as he should have.

"But here, with regard to dying in the normal way, what guarding could he have done so that the angel of death would not kill it? Therefore, even though we hold that a case beginning in negligence and ending in an accident is liable, here he is exempt, for the reason we have written. And that is Rava’s reason, and it is a sound reason, and there is no refutation against it; and the Jewish law follows him. And although we challenged him from Abaye, that resolution was merely a makeshift answer, and we do not rely on it."

So he says: our case, where it died in the normal way, is a case where what could he have done? Meaning, if he had closed the stable door properly, would the animal not have died? It died in the normal way. There is no connection between the negligence and the accident. Even if I had not been negligent, the accident still would have happened. And the whole dispute about a case beginning in negligence and ending in an accident applies only when there is a negative connection between the negligence and the accident. But when there is no connection at all between the negligence and the accident, as we saw, then there is no dispute at all. Therefore the Ra"ch’s argument is simply not correct.

So what is the Rif actually telling us? It is a strange thing, because Rava answers Abaye, "What difference does the angel of death make whether here or there?" And if it really is the angel of death, then there is no connection between the negligence and the accident. And what did Abaye hold? Explain what he held. He held that it was not the angel of death; it was the swamp air. Then there is a connection between the negligence and the accident. The Rif did not learn that way. The Rif apparently claims that according to Abaye, a case beginning in negligence and ending in an accident is liable even when there is no connection between the negligence and the accident. That is what Abaye disagrees with Rava about. Rava argues against Abaye: after all, there is no connection here between the negligence and the accident, so he is exempt. Abaye says back to him: even when there is no connection between the negligence and the accident, he is liable.

But Abaye said, "the swamp air killed it"; he did not accept, "what difference does the angel of death make whether here or there." So either he explains "the swamp air killed it" not as an alternative to the angel of death—he says, I don’t care about the angel of death; still, since he was negligent at the beginning, even if there is no connection between the negligence and the accident, he is liable—or, as I said earlier, Abaye gives a double reason: according to the one who says that a case beginning in negligence and ending in an accident is liable, here he is liable even without any connection to the swamp air, right? I’ll stop right here. What do you mean, without any connection to the swamp air? After all, there is the angel of death; there is no connection between the negligence and the accident. So why, according to the one who says that a case beginning in negligence and ending in an accident is liable, is it obvious here that he is liable even without any connection to the swamp air? You see that according to Abaye, in a case beginning in negligence and ending in an accident one is liable even when there is no connection between the negligence and the accident.

Abaye only adds that even according to the one who says that a case beginning in negligence and ending in an accident is exempt, it could be that here he is liable because here it is entirely negligence; it may be that the swamp air killed it. In other words, what I want to claim is that the Rif probably does not disagree with the Ra"ch in his understanding of Abaye. The Rif also does not disagree with the Ra"ch in his understanding of Abaye. We began this passage by saying that both Abaye and Rava are not dealing at all with the law of beginning in negligence and ending in an accident. Their dispute is over the question of what the cause of death was. That has nothing to do with beginning in negligence and ending in an accident. Then I said, however, that the Ra"ch apparently did not learn that way. The Ra"ch understood their dispute as being about the law of beginning in negligence and ending in an accident. Then I explained that apparently the Ra"ch read Abaye’s reason and Rava’s reason as a double reason. First of all, they dispute whether a case beginning in negligence and ending in an accident is liable or exempt. Second, they add a note: know that even for the second opinion there is also a reasoning saying that perhaps it agrees—each one in his own direction. That is how the Ra"ch read it.

Now the Rif disagrees with the Ra"ch. What would I have expected the Rif to do? Go back to the simple reading of the Talmud, right? Simply say: what do you want? This has nothing to do with beginning in negligence and ending in an accident; they are just saying what the cause of death was—that’s what we discussed earlier. But the Rif does not say that. The Rif says: after all, Rava’s reason is a correct reason against Abaye, and therefore I rule like Rava, because Abaye’s answer is forced. What answer? What are you talking about? Abaye’s answer is not forced, and Rava’s answer is not good; they are not even arguing about beginning in negligence and ending in an accident. They are arguing about the question of what caused the death. And what the Rif should have said is: the dispute is about the cause of death, and the Jewish law follows Rava because the Jewish law follows Rava except for Ya"al Kegam. That’s all. Why do you need to add that Abaye’s answer is forced and therefore you do not accept it? What does that have to do with anything? What is forced here? What are you talking about?

The Rif understands Abaye the same way as the Ra"ch. That is how it appears, and it will become clear later that this is explicit in the Rif, and that is also how the medieval authorities understood him. But I’m showing you that already here this is implied by his words. The Rif argues as follows: according to Abaye, a case beginning in negligence and ending in an accident is liable even when there is no connection between the negligence and the accident. Therefore Abaye says here first of all that he is liable. And know that even according to the one who says exempt, here he would be liable because the swamp air killed it. But my reason for imposing liability is that a case beginning in negligence and ending in an accident is liable even if there is no connection between the negligence and the accident. And the Rif accepts this. That is how the Rif too reads Abaye.

But he does not read Rava that way. Rava argues against Abaye: Abaye, what do you want? That itself is his claim. Here there is no connection between the negligence and the accident—"what difference does the angel of death make whether here or there"—and in such a case even the one who says that a case beginning in negligence and ending in an accident is liable would not impose liability. That is what Rava argues against him. So what is the forced answer that Abaye gives, which the Rif does not accept? Apparently the forced answer is that perhaps even without any connection between the negligence and the accident one is still liable, and that seems forced to the Rif, so he does not accept it.

Fine, it is a bit strange, because that was not asked of Abaye in the Talmud and he did not answer that. Abaye appears before Rava. It is not that Rava asked him, "but there is no connection," and Abaye answered, "even so." Abaye said, "the swamp air killed it"—that was his answer. He says: I think there is a connection between the negligence and the accident; not only is there a connection, it is entirely negligence. A connection between the negligence and the accident is a negative connection; he says no, here it is a positive connection: the negligence itself caused the death, because the swamp air killed it. The Rif apparently read it otherwise. The Rif understood that Abaye’s view is that even when there is no connection between the negligence and the accident, one is still liable, and that is forced. And that is forced, and therefore he does not accept it. But with respect to Abaye’s opinion, he too accepts the Ra"ch’s reading.

So it comes out that according to the Ra"ch and the Rif—well, sorry: according to the Ra"ch, both in Abaye and in Rava, and according to the Rif in Abaye’s view—a case beginning in negligence and ending in an accident, whether liable or exempt, is a dispute both when there is a connection between the negligence and the accident and when there is not. Both in the case of a negative connection and in the case where there is no connection at all—which is a major novelty. Now of course the simple reading of the

[Speaker E] Talmud is not like that. Look for example here. Tosafot on page 42, on the passage of the willow-hut.

[Rabbi Michael Abraham] This is how Rabbeinu Chananel reads it: the Jewish law is that here Rabbeinu Chananel says one is liable. For some reason I had it in my head that Rabbeinu Chananel says exempt. Fine, I don’t remember anymore, but that’s what I had in mind; maybe I’m mistaken. So maybe it’s not Rabbeinu Chananel; it’s the “some say” version cited by the Rif. This is how Rabbeinu Chananel reads it: the Jewish law is that if it begins with negligence and ends with an unavoidable accident, he is liable. And so too it is proven at the end of “HaPo’alim,” page 93; we’ll see that passage, that the Jewish law is that he is liable. For Abaye objects: if so, then if it begins with negligence and ends with an unavoidable accident, he is liable. And so too it is proven at the beginning of the chapter “HaKones,” which is our passage that we’ll get to later on. And specifically where it could be that the accident would not have occurred had he not been negligent at the start. But if he was negligent with it and it went out to the marsh and died, he is exempt, because “what difference does the Angel of Death care whether here or there.” And it must be said that in a hut of willow branches there was excellent safeguarding for money with regard to thieves, like the ground, and therefore with regard to thieves this is called an unavoidable accident. Tosafot learned the Gemara straightforwardly: there is no dispute between Abaye and Rava about a case that begins with negligence and ends with an unavoidable accident. The whole debate about beginning with negligence and ending with an unavoidable accident applies only when there is a connection between the negligence and the accident. If there is no connection between the negligence and the accident, according to everyone he is exempt. And the dispute of Abaye and Rava on page 36 is straightforward. This is a third approach, and it is the plain meaning of the Gemara: that the debate is about what the cause of death was; it is not connected to the issue of beginning with negligence and ending with an unavoidable accident. Everyone agrees that if it begins with negligence and ends with an unavoidable accident, he is liable when there is a connection, and exempt when there is no connection. The dispute is over whether here there was a connection or there wasn’t. That’s all. So that is the third reading of the Gemara. There is Rabbeinu Chananel—not Rabbeinu Chananel, this “some say” version—there is the Rif, and there is Tosafot. We’ll also see later in Tosafot that he brings this Rif and disagrees with it. The Mishnah on page 78 says as follows. If one rents a donkey to lead it on the mountain and led it in the valley, or in the valley and led it on the mountain, even if this is ten mil and that is ten mil, and it died, he is liable. Meaning, you made an arrangement with the owner of the donkey that you would take the donkey along the mountain route, and you took it in the valley; or you agreed on the valley and took it on the mountain. Even though the length of the route is the same, you are liable if the donkey dies. By contrast, if one rented the donkey to lead it on the mountain and led it in the valley, if it slipped he is exempt, and if it overheated he is liable. To lead it in the valley and he led it on the mountain: if it slipped he is liable, and if it overheated he is exempt; and if it was because of the climb, he is liable. What is it saying? The concern in the valley is the heat. On the mountain there is more air. The vapor of the marsh, yes? In the valley there is vapor, there is heat and heavier air, and the animal can die there from that. On the mountain there is the problem of the risk of slipping. Okay? Now if I agreed with the owner of the animal that I’m taking it on the mountain, then the owner of the animal says: look, as far as slipping goes I’m not concerned; my animal knows how to walk on mountains. Don’t take it in the valley, because it won’t withstand the overheating. So if you took it in the valley and it did in fact overheat there, then you are liable. But what happens if it slipped there? After all, the owner had accepted the slipping risk upon himself; he says there’s no problem with slipping, it manages. So if it slipped in the valley, then I’m exempt even though I deviated from the owner’s instructions. Because all in all, it could also have slipped on the mountain. Overheating is the valley issue, but slipping could happen both on the mountain and in the valley, and therefore there I’m exempt. Tosafot writes there on page 78: if it overheated on the mountain, he is exempt. And if you say, according to the one who said earlier on page 42 that if it begins with negligence and ends with an unavoidable accident he is liable, why is he exempt? After all, it began with negligence regarding slipping. Meaning, you agreed with him to take it in the valley and you took it on the mountain, so you were negligent regarding slipping, because it can slip up there. Right? Now if it overheated on the mountain, you are exempt. Why? Because overheating on the mountain is not a serious danger. The problem is slipping, and slipping did not happen. Tosafot asks: why exempt? But after all, this is a case that began with negligence and ended with an unavoidable accident. He was negligent regarding slipping; true, what happened in the end was overheating, but he was negligent at the beginning regarding slipping. And Tosafot says one can answer that liability applies only in the case of an accident where it is possible to attribute it to the fact that had he not changed the terms, perhaps the accident would not have happened. “Would not have happened” should probably be with an aleph, I think. Like that case of the willow hut, where the accident came because of the negligence, for if he had hidden them underground as Shmuel said, they would not have been stolen. But here, if it overheated on the mountain, all the more so had he not changed and had gone in the valley, it would have overheated. And this is what Rava said in “HaMafkid” regarding “he was negligent with it and it went out to the marsh”: even according to the one who says liable, here he is exempt, because “what difference does the Angel of Death care whether here or there.” Tosafot follows his own approach from page 42, and here too he says the same thing. What? That when there is no connection between the negligence and the accident, then even according to the one who says that if it begins with negligence and ends with an unavoidable accident he is liable, here he would be exempt. When there is no connection between the negligence and the accident, you are exempt. And what happens when it slipped in the valley? You agreed to take it on the mountain and it slipped in the valley; then there is no connection between the negligence and the accident, because the slipping could also have happened on the mountain. So the fact that you were negligent and took it in the valley has no connection to the accident, and therefore it would have slipped on the mountain too. Which itself is not such a simple assumption, because slipping is a very local matter; it could be that had you gone on the mountain it would not have slipped. But that is the assumption here in the Gemara and in Tosafot. So Tosafot says we see here in this passage, in the Mishnah, that if there is no connection between the negligence and the accident, then he is exempt even according to the one who says that if it begins with negligence and ends with an unavoidable accident he is liable. And now he brings the opinion of the Rif. It is rare, but there are times when Tosafot brings the Rif. And Rav Alfasi explained there that Abaye follows his own reasoning, as he said in the chapter “HaMafkid”—“there” means on page 93, and we’ll still get to that passage. Abaye follows his own reasoning, as he said in the chapter “HaMafkid,” this is the Abaye we saw: not only this and so on; even according to the one who says exempt, here he is liable because the vapor of the marsh killed it. It implies that according to the one who says liable, it works out even without this reason, even though the accident would have occurred in any case. Right, this is the Rif we saw, who says that according to the one who says that if it begins with negligence and ends with an unavoidable accident he is liable, then he would be liable even without the reason that the vapor of the marsh killed it. Why? Because if it was the Angel of Death, then there is no connection between the negligence and the accident, and yet according to Abaye, “begins with negligence and ends with an unavoidable accident” means liable even when there is no connection between the negligence and the accident. And here is the proof. That is how he understood the Rif, and that is also how we inferred the Rif above: that regarding Abaye, the Rif agrees with the “some say” version. Regarding Abaye, it is indeed true that according to the one who says that if it begins with negligence and ends with an unavoidable accident he is liable, that applies even when there is no connection between the negligence and the accident. That is how the Rif also understood Abaye, not just the “some say” version. And Tosafot says his proof can be rejected: perhaps even according to the one who says liable, he also relied on this reason stated at the end, that the vapor of the marsh killed it, for otherwise one could challenge him from the Mishnah here, which says “if it overheated on the mountain, he is exempt.” What does that mean? It means that one has to read the Gemara on page 36 the way Tosafot on page 42 read it. What? That even Abaye does not hold that no connection is needed between the negligence and the accident. Abaye also agrees that if there is no connection between the negligence and the accident, then one is exempt. Abaye only claims that according to the one who says liable, he actually imposes liability because the vapor of the marsh killed it. In the end, you don’t need to reach the reasoning of “begins with negligence and ends with an unavoidable accident.” It is not relevant there at all, because there is no connection between the negligence and the accident. Tosafot says: but according to the Rif, there is apparently a difficulty from the Gemara here, from the Mishnah here. Because in the Mishnah here we see that if it slipped in the valley he is exempt. Why? After all, this is a case that began with negligence and ended with an unavoidable accident, because there is no connection between the negligence and the accident. But according to the Rif’s understanding of Abaye, even when there is no connection one is liable. So this is difficult for the Rif, and even more so for the “some say” version, of course, because he says it even as the final Jewish law. So it is difficult: how can that be? How are we to understand the Mishnah here? Tosafot says: however, according to what we will explain later, that here it is not considered a case that begins with negligence, it works out well. Later Tosafot says that in fact the case here—slipping and overheating—is not called “begins with negligence” at all. This is what he will call on page 93 “it begins with theft or loss and ends with an unavoidable accident,” not “it begins with negligence and ends with an unavoidable accident.” So we’ll still get to that. And thus Tosafot says, then there is no difficulty for the Rif from the passage here on page 78. Now what emerges is basically this—I’ll summarize for a moment where we are. There are three ways to understand the dispute of Abaye and Rava on page 36. One way is the way Tosafot learned it. And this is the plain meaning of the Gemara: there is no connection between the issue of whether “begins with negligence and ends with an unavoidable accident” means liable or exempt and the dispute there. According to everyone, if it begins with negligence and ends with an unavoidable accident, he is liable as the Jewish law. According to everyone, if it begins with negligence and ends with an unavoidable accident, he is liable only when there is a connection between the negligence and the accident. If there is no connection, then he is exempt. Abaye and Rava disagree about what the situation there was, what the cause of death was. If it was the Angel of Death, then there is no connection and therefore he is exempt. If it was the vapor of the marsh, then there is a connection; it is entirely negligence, and therefore he is liable. That is Tosafot’s reading. The reading of the “some say” version cited by the Rif is that according to everyone, the dispute over whether “begins with negligence and ends with an unavoidable accident” means liable or exempt applies even when there is no connection between the negligence and the accident. And the dispute between Abaye and Rava is over the question whether “begins with negligence and ends with an unavoidable accident” means liable or exempt. And those reasonings—vapor of the marsh or Angel of Death—are only side comments in parentheses in order to satisfy the other opinion as well, but that is not the main point of the dispute. That is a second way to read the dispute. A third approach is the Rif’s own view. According to Abaye, indeed “begins with negligence and ends with an unavoidable accident” means liable even when there is no connection between the negligence and the accident. According to Rava, no. That is how the Rif understands it. Okay. So what happens now? How does everything fit together? So far we have learned and encountered three cases. One case is: he was negligent with it and it went out to the marsh and died in its normal way. The second case is the willow hut. And the third case is it slipped in the valley and overheated on the mountain. Each of these cases has to be arranged according to each of the approaches. Tosafot does all the work, so there is no need to strain ourselves—Tosafot that we just read on page 78. He arranges it according to all the approaches. According to his own approach there is no problem. The willow hut is a case where there is a passive connection, a negative connection, between the negligence and the accident; that is what the dispute was stated about. On page 78, overheated on the mountain and slipped in the valley: there is no connection between the negligence and the accident, and therefore there it is obvious that from the standpoint of “begins with negligence and ends with an unavoidable accident” he is exempt. The case of “he was negligent with it and it went out to the marsh and died in its normal way” is a dispute between Abaye and Rava as to whether that is entirely negligence or simply an unavoidable accident because there is no connection between the negligence and the accident. That’s it. That is how one arranges the three cases according to Tosafot. According to the “some say” version in the Rif, then we have already arranged the dispute of Abaye and Rava on page 36. The willow hut is a case where there is a negative connection between the negligence and the accident, and the dispute also concerns that case. Yes, according to the “some say” version, the dispute over whether “begins with negligence and ends with an unavoidable accident” means liable or exempt applies both to a case where there is no connection between the negligence and the accident and to a case where there is a negative connection. And why in the case of overheated on the mountain and slipped in the valley is he exempt there? After all, even when there is no connection, according to that view he should be liable. Because there, that is not “begins with negligence.” That is Tosafot’s comment at the end; we’ll get to it later. And the same with the Rif. According to Rava, the Rif goes like Tosafot, and according to Abaye, the Rif is like the “some say” version. So in any case we reconcile the Rif either like Tosafot’s reading of the Gemara or like the “some say” version’s reading of the Gemara. Now how are we to understand this opinion of the “some say” version and of the Rif regarding Abaye? Why indeed, in a case that begins with negligence and ends with an unavoidable accident, when there is no connection between the negligence and the accident—what the Rif calls a far-fetched reasoning, and Tosafot does not accept at all even in Abaye’s view—why, how can one say that he is nevertheless liable? So here I remind you of what I said in the previous lecture: that you are really becoming liable for the negligence itself. Why does there have to be an accident in the end? Because if there were no accident in the end, then you return the animal itself as payment. Theoretically, as I said, it could even be that you can keep the animal with you and pay money. Because in the end, once you were negligent, you already became liable. That’s it. Even when you return the animal, you return it only as payment. If it appreciated in value, for example, then too you return it according to its value at the time of the negligence, and so on. Okay? It seems to me that this is the most natural understanding of the Rif in Abaye and of the “some say” version in general. And then indeed it does not matter whether there is a connection between the negligence and the accident or there is no connection between the negligence and the accident; in any case, according to the one who says liable, you are liable for the negligence itself. Why should I care whether there is or isn’t a connection to the accident afterward? You were negligent? You must pay. An accident happened afterward, so what can be done—you no longer have the animal to return it. According to the one who says that if it begins with negligence and ends with an unavoidable accident he is exempt, then he is exempt because the negligence by itself does not create liability except in relation to the accident, and second, because “begins with negligence and ends with an unavoidable accident” is really an unavoidable accident, and therefore one cannot impose liability for the accident, for what happened at the end. Remember, in the previous lecture I spoke about the question whether liability is for the negligence or for what happened in the end, for the accident—not for the accident but for the loss. Okay? So here it seems that according to the one who says that if it begins with negligence and ends with an unavoidable accident he is exempt, in the approach of the “some say” version one has to say there are two novel points. First, for the negligence itself you are not liable, and therefore when there is no connection between the negligence and the accident you are not liable. But even when there is a connection between the negligence and the accident, you are not liable. Why? Then make me liable for the accident that happened at the end, even if you do not make me liable for the negligence alone. The answer is that when there is a negative connection, that is not a sufficient connection to impose liability for the accident at the end. Now the next case: we have a fourth case. The fourth case is also a passage on page 93 in Bava Metzia. On page 93 I’ll begin it because we don’t have much time left, but at least we’ll start it. And it is the last passage; it will complete the picture for us. There was a certain shepherd—like a shepherd, because a shepherd is a paid guardian, yes, that is the rule in the Gemara. There was a certain shepherd who was grazing animals on the bank of the Papa River; one of them slipped and fell into the water. He came before Rabbah—there are versions reading Rabbah or Rava—and he exempted him. He said: what was he supposed to do? He guarded as people guard. The people there in that place were accustomed to taking the animals along the riverbank, and if he did what a normal person does, I have no way to make him liable; he guarded as people guard, he guarded the way people normally guard. Abaye said to him—notice the names, the names here are important; this is Abaye against Rabbah or Rava, two textual versions—Abaye said to him: if so, then if he entered the town at the time when people usually enter town, here too would you say he is exempt? What are you trying to tell me, Rabbah? That if a person leaves the flock—a paid guardian leaves the flock and goes into town together with all the guys to eat falafel, and comes back an hour later to the area, and in the meantime it turns out something happened to the flock—he left the flock—he is also exempt? He said to him: yes. Why? For the same reason: because he guarded as people guard. If normal people who guard their own flock allow themselves to go up to town, a paid guardian’s duty of guarding is like that of normal people. A paid guardian has to provide you the kind of guarding that you yourself would do for your own animal. And if people with respect to their own animals allow themselves to go up to town, then a paid guardian can also go up to town along with them. Abaye asks—continues asking: if he dozed a little at the time when people sleep, would you say here too that he is exempt? Now he nodded off a bit, everyone sleeps, a little afternoon nap, everyone is asleep, so he slept too, and now when it turns out, when he wakes up it turns out that something happened—he is also exempt? He said to him: yes. In short, according to Rabbah the rule is that a paid guardian has to guard as people guard, the way people guard their own property. Abaye apparently disagrees with him—that is what he keeps objecting to—and says to him: what are you talking about? A paid guardian has to provide better guarding than an unpaid guardian, so he is supposed to guard more than what ordinary people normally do. The Gemara continues there, and this I still want us to get through and then we’ll finish. There the Gemara brings the following objection: Come and hear an objection. A shepherd who was tending his flock and left his flock and came to town—if a wolf came and tore one, or a lion came and mauled one, we do not say, “Had he been there he would certainly have saved it”; rather, we evaluate him. If he could have saved it, he is liable, and if not, he is exempt. Yes? We say: we do not automatically assume that had he stayed he would have saved the animals. It depends. If it was really a wolf, say, which a normal shepherd could deal with, then we make the man liable for having gone up to town, because if he had remained there he could have dealt with the wolf. But if it was a lion, which an ordinary person cannot deal with, then even if he had stayed there the lion would have torn the flock, and therefore we do not make the person liable for having gone up to town. The Gemara asks: does this not refer to a case where he entered town at the time when people usually enter town? Is the case not that he went up to town when all the other shepherds there also went up to town? The Gemara says: no, it is a case where he went up at a time when people do not go up to town. No—he went up when others did not; he was plainly negligent. If so, why is he exempt? What do you mean, why is he exempt? Why is he exempt even if we assess that had he remained he still would not have been able to deal with it? Because only then is he exempt. After all, if we assess that had he remained he would have handled it, then he is liable. When is he exempt? He is exempt when we assess that even if he had remained, he would not have succeeded in dealing with it. The Gemara asks: even in such a case, why is he exempt? After all, this is a case that begins with negligence and ends with an unavoidable accident. He went up when people do not go up. But if it begins with negligence and ends with an unavoidable accident, he is liable, so why is he exempt? The Gemara says: it is a case where he heard the roar of a lion and went up. If so, then why do we evaluate him? What was he supposed to do? He should have gathered additional shepherds with sticks. If so, then why specifically a paid guardian? Even an unpaid guardian too, for the Master said: an unpaid guardian who should have gathered additional shepherds and sticks and did not gather them is liable. An unpaid guardian does so for free; a paid guardian does so for pay. And how far? Up to their full value. How much does he have to pay for shepherds and sticks to help him? Up to the value of the flock itself. But where do we ever find that a paid guardian is liable for unavoidable accidents? Why should he have to spend money to save the flock from an unavoidable accident? Because afterward he can recover their cost from the owner. No, he will take back from the owner the money he paid the shepherds he recruited. Rav Pappa said to Abaye: if so, what benefit did the owner get from this? What is the practical difference? The practical difference is the physical robustness of the animals. In other words—order here—so what did you gain? You spent all the money that the flock is worth, and then you take it back from the owner, so how did you help him? You gave him the flock, but he paid you its full price. The practical difference is the physical robustness of the animals: he specifically wants his own animals. Or alternatively, it matters for the extra trouble of buying other animals, and so on. Rav Chisda and Rabbah bar Rav Huna do not hold like this ruling of Rabbah, for they say: this is why I paid you wages—to guard with extra guarding. Meaning, Rav Chisda and Rabbah bar Rav Huna hold like Abaye, that a paid guardian requires superior guarding, while Rabbah claims that he must guard as people guard, the ordinary guarding that people use. And now we have to see what exactly the case is here, that case of the shepherd who went up to town. Did he go up at the time when people usually go up? According to Rabbah bar Rav Huna and Rav Chisda, that counts as negligence, right? Because he went up at the time when people usually go up, but a paid guardian has to do more than what a normal person does. According to Rabbah, that is perfectly fine. If he went up at a time when people do not usually go up, then even according to Rabbah that is negligence. Right? Because he was negligent even by the standards of what ordinary people do—in other words, he did less than what ordinary people do. Okay? Fine, so I’ll stop here. I’d be happy if you would review this Gemara, so that next time we can go straight on. In fact, if you want, look there at Tosafot and at the continuation of the Rif on page 36, which also relates to this passage, and also at Tosafot on page 78 that we read earlier, which also relates to this passage. Okay, goodbye.

Chapter: The Receiver — Lesson 20

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השאר תגובהלבטל

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שתף

השאר תגובהלבטל