Receiver Chapter – Lesson 21

[Rabbi Michael Abraham] Okay, so last time we talked about three views in understanding the dispute about a case that begins with negligence and ends with circumstances beyond one’s control, in the topic in Bava Metzia 36. The view of the “some explain” in the Rif is that the dispute over whether a case that begins with negligence and ends with circumstances beyond one’s control is liable or exempt depends on whether there is a connection between the negligence and the uncontrollable event—and whenever I talk about a connection, I mean a negative connection—or whether there is no connection. Right? The Rif says—sorry—the “some explain” say that according to the one who holds liable, he holds liable even when there is no connection, and the one who exempts exempts even when there is a connection. Fine? Meaning, the dispute runs from one extreme to the other. The Rif’s own view is halfway. He argues that according to Abaye, the dispute really covers both situations—whether there is a connection and whether there is no connection—but according to Rava it is only when there is a connection. When there is no connection, everyone exempts; and when there is a connection, that is the dispute, and as a matter of Jewish law the ruling is liability. And the view of Tosafot—and actually this is the straightforward view in the passage—is that the dispute deals with the disagreement between Abaye and Rava there about the case where it went out to the marsh and died in its normal way. The dispute concerns the cause of death: whether the death can be attributed to some cause, either the air of the marsh or the angel of death. But there is no dispute here at all about the law of a case that begins with negligence and ends with circumstances beyond one’s control, because as the Talmud explicitly says, both Abaye and Rava each state their position whether according to the one who says such a case is liable and whether according to the one who says exempt. And so according to Tosafot, regarding the dispute over a case that begins with negligence and ends with circumstances beyond one’s control, we remain with the straightforward understanding that the dispute is like the Rif’s understanding of Rava—except that Tosafot says this is true for Abaye as well—that the dispute exists only when there is a connection, in parentheses a negative one, between the negligence and the uncontrollable event. Only then is there a dispute. If there is no connection, then obviously they are exempt. In practice it seems that the Rif and Tosafot do not disagree, because in practice we rule like Rava against Abaye, generally according to most halakhic decisors, and if we rule like Rava then in any case regarding a case that begins with negligence and ends with circumstances beyond one’s control, it is clear that one is liable only if there is a connection between the negligence and the uncontrollable event, and if there is no connection then he is exempt. All the Rif claims is that Abaye does not agree with this, but Abaye is not accepted as the practical ruling. The “some explain” of the Rif claim this even in practice. They claim that even when there is no connection between the negligence and the uncontrollable event, according to the one who says that a case that begins with negligence and ends with circumstances beyond one’s control is liable, he is liable there too. Okay, so those are the three views we saw. We saw there three passages that relate to this discussion: the dispute of Abaye and Rava in Bava Metzia 36; the law of the hut of willow branches, where we saw that there is a connection between the negligence and the uncontrollable event; and the law of “it became overheated on the mountain and slipped in the valley,” which we saw on page 78. We explained each of the views in light of each of the passages. At the end of the previous lecture we started the passage in Bava Metzia 93b, the fourth passage, and there we saw—let’s remind ourselves, because we only just started it. רגע, I’m sharing. There was a certain shepherd who was grazing animals on the bank of the Pappa River. Animals—sorry—on the bank of the Pappa River. One of them slipped and fell into the water. He came before Rabbah, and Rabbah exempted him. He said: what was he supposed to do? He guarded as people normally guard. So Rabbah says—listen again—this is a paid bailee, right? I said that. So Rabbah says that a paid bailee has to guard in the way people normally guard; just as a person guards his own property, so a shepherd is supposed to guard the animals in his care. Abaye said to him: if so, if he entered the town at the time when people normally enter town, would he also be exempt? So if a person grazing sheep goes up to town in the middle of the day, because that’s what people normally do—usually people who take care of their own sheep leave them for some amount of time, go to town, I don’t know, to rest, eat lunch, and then come back afterward—would a paid bailee also be allowed to do that? So Rabbah said to him: yes. He said to him, yes—he is supposed to do what a normal person does with his own property. That’s what a paid bailee has to do with property entrusted to him. If he sleeps a little at the time when people normally sleep—again, in the normal way of people, who usually go to sleep for some period and then wake up, in relation to their property—then can a shepherd regarding the property entrusted to him… can he also go to sleep, let’s say, in the same measure that ordinary people do? He said to him: yes. Rabbah says yes. It’s not completely clear what Abaye himself holds. He asks Rabbah and Rabbah answers him. I don’t know whether Abaye was convinced and joined Rabbah’s opinion or wasn’t convinced, but at least Rabbah argues that a paid bailee does not need to guard better than an ordinary person. Abaye wonders about that; whether he accepted Rabbah’s answer or not, I don’t know. At the end of the passage we have two sages, Rav Chisda and Rabbah bar Rav Huna, who explicitly disagree with Rabbah. Where exactly Abaye stands here is not entirely clear. Tosafot and the Rif make assumptions about him; from the Talmud itself it is not entirely clear.

[Speaker B] So what is the reasoning that someone who is paid and an ordinary person are the same? He’s getting paid; he should have to guard more. You’re—

[Rabbi Michael Abraham] You’re comparing him—

[Speaker B] —to an unpaid bailee.

[Rabbi Michael Abraham] Unpaid, yes, but I’m comparing it to a person guarding his own property.

[Speaker B] His own property, I understand, okay.

[Rabbi Michael Abraham] “As people normally guard” means like the way people guard their own property—how careful they are not to leave their sheep. That is what a paid bailee is supposed to do. No, your question is still a valid one: so what would we say about an unpaid bailee? Can an unpaid bailee guard even less carefully than “as people normally guard”?

[Speaker B] What, he’ll just come out nice? What’s he supposed to do?

[Rabbi Michael Abraham] Okay, that’s what I’m asking. Your question can still be raised, even though the Talmud doesn’t make the comparison to an unpaid bailee but rather to a person guarding his own property. But there is still room for your question with respect to an unpaid bailee. If a paid bailee has to guard as people normally guard, then what about an unpaid bailee? Can an unpaid bailee guard less than that? The accepted assumption is no. Rather, according to Rabbah, both a paid bailee and an unpaid bailee are supposed to guard at the same level: as people normally guard. And then of course the question arises: so why are you paying him? So the answer is: I’m paying him because otherwise he wouldn’t be willing to guard. Meaning, I come to a person and I say, I want you to guard this for me. For free he’s not willing—he has other things to do. If you pay him, he’ll be willing. But that doesn’t mean that because you pay him, you can demand more from him than from an unpaid bailee. All it means is that his willingness to become a bailee is not free, that’s all. But a bailee is one thing. An unpaid bailee and a paid bailee are the same thing: guard as people normally guard. After all, that also makes sense. What is a person himself looking for when he looks for a bailee? He’s looking for someone who will treat his animals the way he himself would treat them. Right? If he himself would treat them in a certain way, then he says: now I have, I don’t know, business in Australia, I’m looking for someone to keep the flame alive, to keep treating the animals the way I myself would treat them. Therefore, “as people normally guard” is the criterion. And if that’s so, it could definitely be true of both an unpaid bailee and a paid bailee. Of course with regard to liability there is a difference between an unpaid bailee and a paid bailee. A paid bailee is liable for theft and loss; an unpaid bailee is exempt from theft and loss. But in terms of the level of guarding, apparently they are both supposed to provide the same level of guarding. And we’ll see that in a moment. The Talmud raises an objection: A shepherd who was grazing, and left his flock and came to town; a wolf came and tore one, a lion came and mauled one—one does not say, “Had he been there he would have saved it.” Rather, one evaluates him: if he could have saved it, he is liable, and if not, he is exempt. Fine, that is the statement that is brought. Now the Talmud starts clarifying what exactly the case is here. What, are we not talking about a case where he came into town at the time when people normally enter? So then what? If he came in at the time when people normally enter, then the question is: if he could have saved it, why is he liable? After all, he acted as people normally guard. What do you want from him? Right? That is a difficulty against Rabbah. Okay? So the Talmud says: no, we are dealing with a case where he entered at a time when people do not normally enter. Meaning, he was negligent in the sense that he left at a time when others do not leave; that is, he gave less guarding than the reasonable person’s standard of guarding. The Talmud asks: if so, why is he exempt? Meaning, even if he could not have saved it, in which case this statement says he is exempt—the Talmud asks why? This is a case that begins with negligence and ends with circumstances beyond one’s control, and that should be liable. And in practice we rule that a case that begins with negligence and ends with circumstances beyond one’s control is liable. And if he entered the town at a time when people do not normally enter, then he clearly began with negligence. So why should I care that in the end—true, what happened was that he could not have saved it, so the end was an uncontrollable event—but bottom line, this is a case that begins with negligence and ends with circumstances beyond one’s control, so he should be liable. So why does the statement say he is exempt? And here I’m saying, notice: apparently there is no connection here between the negligence and the uncontrollable event. He went up to town, but even if he had stayed, he could not have saved it. Meaning, it’s not that his going up to town caused the damage. Even if he had not gone up, it still would have happened there. And we see here in the Talmud that a case that begins with negligence and ends with circumstances beyond one’s control is liable even when there is no connection between the negligence and the uncontrollable event. This, by the way, is the proof that the Rif himself brings. The Rif himself brings proof from the Talmud here. We’ll see in a moment. So the Talmud answers: he heard the sound of a lion and then went up. He heard the sound of a lion, and therefore he left. If so, then what does “one evaluates him” mean? What was he supposed to do? He should have gone ahead with shepherds and sticks—not important, there’s a whole discussion in the Talmud that is less relevant for our purposes. He said to him—wait, sorry, Rav Chisda and Rabbah bar Rav Huna—I’m skipping to the end. The rest is less important; no need to get tangled up in it. Rav Chisda and Rabbah bar Rav Huna do not hold like this ruling of Rabbah. Meaning, with Abaye above I wondered whether he accepted Rabbah’s answers or remained in disagreement with him. Here we have two sages who certainly disagree with Rabbah. They do not accept that a paid bailee need only guard as people normally guard, for they say: “That is why I gave you wages—to guard for me with extra guarding.” I gave you money, you are a paid bailee, and apparently I expected from you a better level of guarding than just an ordinary person guarding, or an unpaid bailee, or just a person guarding his own property. Therefore they do not accept that a paid bailee need only guard as people normally guard. It seems that the claim is this: after all, all the laws of bailees are default laws, right? That’s the Mishnah in Bava Metzia 94, I think, that a person may stipulate for an unpaid bailee to have the status of a paid bailee, and so on. Meaning, all the Torah laws—that an unpaid bailee is liable for negligence and exempt for the rest, and that a paid bailee is liable for theft and loss, and a borrower is liable even for circumstances beyond one’s control—all these laws are default laws. And if the two parties stipulate between themselves and make a special contract, there is no problem—they can make a different contract. Okay. Now the question is what happens when they did not make a contract. If they did not make a contract, then there is the Torah law. Now here, when you paid him wages—how did I explain Rabbah’s opinion before? Why is Rabbah unwilling to impose on him a greater duty of guarding even though he is paid? Why does a paid bailee only have to guard like an unpaid bailee? After all, he is getting paid. So I explained: overall, the paid bailee could simply have refused to take on the guarding at all, and said: I’m only willing to guard if you pay me. Not that you’re paying me so I’ll give you better guarding, but rather I’m not willing to guard. If you want to pay me—I’m losing money instead of working—if you want to pay me, fine, pay me, and then I’ll guard. But I’ll guard in the usual way, as people normally guard, ordinary guarding. Okay. That was Rabbah’s conception. What do Rav Chisda and Rabbah bar Rav Huna say? They say: all of that is true if you had said so. If you, the bailee, had stipulated and said: I want money, but know that I’m only willing to provide the standard guarding that people normally provide—no problem. But if you did not stipulate, then the rule reverts to what the Torah says. And what the Torah says is that if I pay money, then I am supposed to receive a higher level of compensation than from someone I do not pay. Of course you can always stipulate otherwise. But Rabbah claims this is true even without a stipulation. From the mere fact that you took money, says Rabbah, it does not mean that you have to provide better guarding. So Rav Chisda and Rabbah bar Rav Huna would apparently say to him: not true, it does mean that. You’re right that if he had explicitly stipulated, if he had said, I’m not going to give you better guarding, I just want money, then fine, of course he can. But if he did not stipulate, then the normal laws apply, and if he took money, he has to provide compensation accordingly. In the end, what emerges here from the passage? This statement about the shepherd who was grazing and left his flock and came to town—what does it say? That if he could have saved it, then he is liable, and if he could not have saved it, then he is exempt. That is the basic law. Now the question is: what case is this referring to? So according to Rabbah—well, according to Rabbah, if he went up at the time when people normally go up, then we must say that he went up at a time when people do not normally go up, and that we are dealing with a case where he was negligent, right? Because if he was not negligent, then he would not be liable. So we are dealing with a case where he was negligent. He went up at a time when people do not normally go up, and nevertheless if he could have saved it, then he is liable; if he could not have saved it, then he is exempt. According to Abaye—not Abaye, I don’t know Abaye’s position—but according to Rav Chisda and Rabbah bar Rav Huna, who disagree with Rabbah and argue that a paid bailee has to guard more carefully than ordinary people, they would explain this statement as referring to a case where he went up at the time when people normally go up, because according to them even that counts as negligence for a paid shepherd. Meaning, each side explains this statement in a way where he was negligent. Now what counts as negligence? That depends. According to Rabbah, it is going up at a time when people do not normally go up; according to Rabbah bar Rav Huna and Rav Chisda, it is going up at a time when people do normally go up. But both explain it in a way where he was negligent. Okay, that’s the summary of the discussion so far. Does anyone want to comment first? Okay, so now the Rif—now I’m going back, by the way, to the Rif on page 36. This is the continuation of the Rif that we saw last time. It is not on this passage, but he relates to this passage. “And if it troubles you that we read in the chapter ‘The One Who Hires Workers’: Abaye objected to Rava from the case of a shepherd who was grazing and left his flock and came to town, etc., and we hear from it”—do you see this?—“and we hear from it that where the beginning was with negligence, even if the uncontrollable event was not caused by the negligence, he is liable.” The Rif says—remember the context. The context is the Rif’s dispute with the “some explain.” The “some explain” argue that even when there is no connection between the negligence and the uncontrollable event, according to the one who says that a case that begins with negligence and ends with circumstances beyond one’s control is liable, he will be liable there as well. The Rif here says in this passage—and the Rif disagrees with them and says that is not true. According to Abaye, yes, but in practice he disagrees with them. The Rif says: apparently from the passage here it is proven like the “some explain,” because the passage here raises the argument that this is a case that begins with negligence and ends with circumstances beyond one’s control and therefore should be liable in a place where there is no connection between the negligence and the uncontrollable event. And it is brought anonymously; apparently it is being said as practical law. So the Rif says: if so, that is difficult for me, and this is proof in favor of the “some explain.” So the Rif says that is not proof. “That statement is by Abaye and Rava.” You see? “That statement is by Abaye and Rava, and it is no stronger than this statement that they have here, and Rava has already rejected it.” Meaning, who is speaking here? The speaker here is Abaye in discussion with Rava. Remember who the sages were on page 36? That was the dispute between Abaye and Rava regarding Rabbah’s view. Meaning, Abaye regarding Rabbah’s view—the Rif says—even I agree that he does not require a connection between the negligence and the uncontrollable event. So don’t bring me proofs from here, because here the ones speaking are Abaye and Rava. Fine, they really do belong to the approach that does not require a connection between the negligence and the uncontrollable event. What I argued with the “some explain” about was according to Rava, whose view is accepted as practical Jewish law, and there I claimed that there must be a connection between the negligence and the uncontrollable event in order for him to be liable. Therefore there is no difficulty from the passage here—that is the Rif’s argument. “And this teaching about the shepherd who was grazing”—yes?—that same baraita brought here, “the shepherd who was grazing”—“according to its plain sense we hold that the law is: if he could have saved it he is liable, and if not he is exempt. And as Abaye explains it, that he entered at the time when people normally enter, and as Rava explains it, that he heard the sound of a lion and entered—those are forced answers, and we do not rely on forced answers. Rather, whether he entered at the time when people normally enter or whether at the time when people do not normally enter, if he could have saved it, even by means of shepherds and sticks, he is liable; and if not, he is exempt.” Okay? So basically the view he rules like in practice is apparently Rav Chisda and Rabbah bar Rav Huna, who disagree with Rava and argue that the paid bailee must guard more than ordinary people do. Therefore this law applies both when he went up at the time when people normally go up—which according to the paid bailee’s standard is also negligence—and when he went up at a time when people do not normally go up, which is ultra-negligence. Fine? According to Abaye and Rava, it is something else, but they are a separate view and are not accepted as practical law. That is basically the Rif’s claim. Now there is Tosafot there on page 78, in that same passage dealing with the Mishnah there about someone who rented a donkey from his fellow. “And if you say,” says Tosafot—we saw the first part of Tosafot, now I’m continuing it. Each time, just in order to see the passage, we saw the passage and now I’m going back to the Rif and Tosafot to see what they said on this passage. “And if you say: at the end of the chapter ‘Workers,’ regarding one who left his flock and came to town, and a lion came and mauled it, he is exempt, and Rava explains it as a case where he entered at a time when people do not normally enter”—because Rava holds that only that is called negligence; if he entered at the time when people normally enter, that is not negligence—“and Abaye challenges: it begins with negligence regarding thieves and ends with circumstances beyond one’s control regarding the lion; but there, even if he had not been negligent and had not gone to town, he still would have suffered an uncontrollable event. So what is Abaye’s challenge?” Exactly what the Rif noted, right? The Rif asked: from there there seems to be proof that one does not need a connection between the negligence and the uncontrollable event. What did he answer? Fine, that goes according to Abaye’s view. According to Abaye, even I agree that one does not need a connection between the negligence and the uncontrollable event. But Tosafot, if you remember, disagrees with the Rif as well. That is a third view. There are the “some explain,” the Rif, and Tosafot. Tosafot is a third view. Tosafot argues that even according to Abaye there needs to be a connection between the negligence and the uncontrollable event. If so, then the question the Rif raised from page 93 remains difficult according to Tosafot, because on page 93 we see that the Talmud assumes that a case that begins with negligence and ends with circumstances beyond one’s control is liable even when there is no connection between the negligence and the uncontrollable event. And according to Tosafot you can’t say, fine, that’s Abaye’s view, because according to Tosafot even Abaye requires a connection between the negligence and the uncontrollable event. The Rif could say that, but Tosafot—“And one may say,” says Tosafot, “that perhaps if he had been there he would have—”

[Speaker C] “—led them to another pasture—”

[Rabbi Michael Abraham] “—before the lion came, because that is the way of shepherds, to graze half the day in one field and half the day in another field. Or perhaps if he had been there, the lion would have been afraid to come there. Or he might have fulfilled in himself as well, ‘Your servant struck down both the lion and the bear.’” What is Tosafot saying? Basically, there too there is a connection between the negligence and the uncontrollable event. There is a connection. Why? Because in the end, even if it could be that if I had stayed there I still would not have been able to save it—meaning that in the end it was still an uncontrollable event—you still cannot say that there is no connection between the negligence and the uncontrollable event. Because if I had not gone up to town but stayed there, maybe I would have taken my flock to another place. Shepherds move from place to place, so maybe I would have taken the flock somewhere else. And maybe if the lion had seen me next to the flock, it would not have attacked, because it would itself have been afraid. Or maybe I would even have done like our forefather Jacob: “Your servant struck down both the lion and the bear.” I would have fought the lion anyway. Therefore you cannot say there is no connection at all between the negligence and the uncontrollable event. It reminds me of the joke—you know it—two people are walking in the forest, suddenly from a distance they see some lion. They’re really frightened. One starts to run, and the other changes his shoes into running shoes. So the first asks him: are you crazy? The lion doesn’t care whether you have running shoes or not; he’ll catch you anyway. Start running already. You’re not going to outrun the lion even with running shoes. So he says to him: what I need is not to outrun the lion; what I need is to outrun you. That’s basically what Tosafot is saying. Tosafot is basically saying: if I had been there with the flock, maybe the lion would have held back and attacked the flocks of the ordinary people who had gone up to town according to the normal way people guard. But I stayed here. So true, I couldn’t have dealt with the lion—but why should the lion get into trouble with me? It will go to the sheep that have no shepherd there at all. So I don’t need to deal with the lion; I need to deal with you, like the guy with the running shoes. So it’s the same idea. In any event, what is Tosafot saying here? Tosafot argues that it is not true that in this passage there is no connection between the negligence and the uncontrollable event. There is a connection between the negligence and the uncontrollable event in this passage too. However, one should pay attention: the connection here is a connection—we spoke about this also in the passage on page 36, if you remember. There we discussed the issue that when you are a bailee and something happens to the item in your charge, to what extent can I attribute what happened to unsafe circumstances. It may be that this itself is the dispute between Abaye and Rava. We talked about that there. “What difference does it make whether here or there, the angel of death?” That basically means: it died without a reason. But maybe “the air of the marsh killed it”—that is what Abaye says. So what is the dispute? The dispute is perhaps over the question of upon whom the burden of proof lies. Is it enough to say that the air of the marsh killed it in order to exempt the bailee? Rava says no. Maybe it was the angel of death. And the default presumption is that the bailee is liable. Only if he brings proof that it was the air of the marsh would he be exempt. So you see that there too, maybe the dispute was over the question of to what extent I can attribute what happened to these causes or those causes, when there are several possible interpretations—how we choose the correct interpretation, or in other words, on whom the burden of proof lies. In the case here, we see in Tosafot that Tosafot argues that there is in fact a connection between the negligence and the uncontrollable event. Why? Because maybe if he had stayed there he would have taken the flock somewhere else. And maybe not. It is not certain; Tosafot himself says “perhaps.” Is such a “perhaps” enough to make him liable? According to Tosafot, yes. Right? It is enough that perhaps, if you had stayed, the lion would not have attacked the flock. That is enough to establish that there was a connection between the negligence and the uncontrollable event, and to make you liable. That is basically what Tosafot is saying. So as far as the passage on page 36 is concerned—I won’t go back to it here—as far as the passage on page 36 is concerned, it turns out that a possible attribution is enough to make the bailee liable. The claimant does not need to prove what happened, the connection between the negligence and the uncontrollable event. On the contrary, the bailee has to prove that there was no connection. And here Tosafot says: you cannot prove that there was no connection, because maybe there was—maybe if you had stayed, you would have taken the flock somewhere else. So that is Tosafot’s view. Okay, so in the end we remain basically with our three views, and now we have seen a fourth passage, and each of the three views has to explain this passage as well. According to the “some explain,” there is no problem at all. It goes according to the plain sense of the passage on 93b; maybe this is even their source. That even if there is no connection between the negligence and the uncontrollable event, still according to the one who says that a case that begins with negligence and ends with circumstances beyond one’s control is liable, here too he will be liable. According to the Rif, again there is no problem, because the passage goes according to Abaye’s view, and even the Rif agrees that Abaye does not require a connection between the negligence and the uncontrollable event. And according to Tosafot, who requires even in Abaye’s view a connection between the negligence and the uncontrollable event, Tosafot says: there is a connection here, or at least enough of a connection. It is enough that there is a possibility of connecting the negligence to the uncontrollable event in order to make you liable. That is the conclusion up to this point. But on the face of it, at least for now, Tosafot and the Rif do not disagree in practice, because the Rif’s view in Rava—which is how he rules in practice—is basically like Tosafot: that a case that begins with negligence and ends with circumstances beyond one’s control applies only when there is a connection between the negligence and the uncontrollable event. If there is no connection, then according to all views he is exempt. Okay? So in practice there is no dispute. Now we will see that even in practice there is a dispute. Tosafot there on page 93—so until now we discussed the passage on 93 as it appears in Tosafot on page 78. Now I’m moving to another Tosafot that appears on page 93 itself. And Tosafot says as follows: “If so, why is he exempt? It is a case that begins with negligence and ends with circumstances beyond one’s control.” Tosafot asks: “And if you say that even according to Abaye, who explains it as a case where he entered at the time when people normally enter, is it comfortable? After all, in any case, if he could have saved it he is liable, which shows that it is a beginning with negligence.” So Abaye explains it as a case where he entered at the time when people normally enter, and he assumes that Abaye follows Rav Chisda and Rabbah bar Rav Huna against Rabbah. So he explains the baraita as speaking of a case where it was at the time when people normally enter, and even that is negligence, right? And what does it say there? That if he could have saved it, then he is liable, right? Because it is negligence. So then why, if he could not have saved it, is he exempt? And that is the question—after all, what is Tosafot focused on? Look at Tosafot’s opening words: “If so, why is he exempt? It is a case that begins with negligence and ends with circumstances beyond one’s control.” Okay? So he asks this about Rava. So Tosafot says: but you yourself, Abaye—what do you answer? You explain it as a case where it was at the time when people do normally enter town, so how do you explain that if they evaluate him and determine that he could not have saved it, he is exempt? After all, we—you say that going up at the time when people normally enter is negligence. And Tosafot himself already explained that here there is a connection between the negligence and the uncontrollable event. So there is negligence and there is a connection between the negligence and the uncontrollable event, but in the end, if they evaluated him and decided that he could not have saved it, then he is exempt. Why? After all, this is a case that begins with negligence and ends with circumstances beyond one’s control, and there is a connection between the negligence and the uncontrollable event. Why is he exempt? Abaye attacks Rava, but what would Abaye himself say? Until now they asked: how can this be a case that begins with negligence and ends with circumstances beyond one’s control—there is no connection between the negligence and the uncontrollable event. So the Rif said: in Abaye’s view you don’t need a connection. Tosafot said: there is a connection here. But now let’s ask in the opposite direction. You explained to me until now why, if they estimate that he could have saved it, he is liable. I’m asking why, if they estimate that he could not have saved it, he is exempt. After all, this is a case that begins with negligence and ends with circumstances beyond one’s control. You, Tosafot, explained very convincingly that there is a connection between the negligence and the uncontrollable event. So if there is a connection between the negligence and the uncontrollable event, and he entered at the time when people normally enter—that means he was negligent—and in the end they evaluated him and said he could not have saved it, then the end was an uncontrollable event. But that uncontrollable event is connected to the negligence, because maybe he would have taken it somewhere else, and so on. So why is he exempt? It is a case that begins with negligence and ends with circumstances beyond one’s control; he should be liable. That is difficult even for Abaye himself—that is Tosafot’s question. “And one may say that this is not considered negligence except in the sense of theft and loss, and one may learn from here that a beginning that is akin to theft and loss and an end with circumstances beyond one’s control is exempt.” What is he saying? He is saying that when he goes up to town at the time when people normally enter town—if he goes up at a time when people do not normally enter, that is full negligence, and then even if they evaluate him and decide that he could not have saved it, he would still be liable, because that is a case that begins with negligence and ends with circumstances beyond one’s control. But if he entered at the time when people normally enter, which is indeed negligence because Abaye demands from him more than ordinary people guard, still it is not full negligence. It is akin to theft and loss. Meaning, he gave you the service level of an unpaid bailee; he did not give you the service level of a paid bailee. So what he did wrong here is a minor negligence, called negligence akin to theft and loss. This is a negligence that allows theft and loss to happen, not something that allows actual negligence-level damage to happen. Okay? In such a situation, says Tosafot, if it begins akin to theft and loss and ends with circumstances beyond one’s control, he is exempt. Even according to the one who says that a case that begins with negligence and ends with circumstances beyond one’s control is liable, if it begins with theft and loss and ends with circumstances beyond one’s control, he is exempt. This is Tosafot’s proof, and all the halakhic authorities bring it as practical law, because apparently it is a decisive proof from the passage here. Let’s continue reading for a moment. “From that which Rav said in ‘The Depositor’: even a paid bailee who handed it over to an unpaid bailee is exempt, because he handed it over to a competent person”—there is no proof from there. We will talk about a bailee who hands over to another bailee. A paid bailee hands it over to an unpaid bailee. Apparently he lowered the level of guarding from theft-and-loss level to negligence-only level, right? Because an unpaid bailee guards only against negligence, while a paid bailee is supposed to provide guarding even against theft and loss. So apparently he should be liable. So why, if he handed it over to an unpaid bailee, is he exempt? It says, “because he handed it over to a competent person.” What difference does it make that he handed it over to a competent person? But that competent person guards only against negligence. So he says there is no proof from there, “for even if Rav held that a beginning akin to theft and loss and an end with circumstances beyond one’s control is liable, nevertheless here he is exempt, because we cannot say for certain that the unpaid bailee will not guard against theft and loss but only against negligence, and so it would not necessarily be considered a beginning with theft and loss. Rather, an ordinary competent person is accustomed to guard well even against things for which he is not legally liable.” He says: you cannot know—who knows? You handed it over to an unpaid bailee, but an ordinary competent person guards well. נכון, he is not obligated, but he guards well. Therefore there is not necessarily negligence here. So if there is not necessarily negligence here, still—still—there is negligence akin to theft and loss. So why, if in the end an uncontrollable event occurred, is he exempt? It is not entirely clear. Maybe he means to say that if it begins with theft and loss and ends with circumstances beyond one’s control, when it is not clear that there is a connection between the negligence and the uncontrollable event, when the connection is only partial, then he will be exempt even in practice. Otherwise this is difficult. What is Tosafot saying? Tosafot says that if a paid bailee hands it over to an unpaid bailee, apparently he lowered the level of guarding from something like theft and loss to something like negligence. Meaning, he was negligent in the sense of theft and loss. Okay? Tosafot says he is exempt because maybe the unpaid bailee will guard well and maybe not. But above you told me that that kind of “maybe” is enough to make the bailee liable, right? You said maybe he would have gone somewhere else with the flock, or maybe the lion would have been frightened. Those “maybes” were enough to make the bailee liable. So why here do the “maybes” suddenly work in favor of the bailee? I think what needs to be said here is that there he was speaking about a case that begins with negligence and ends with circumstances beyond one’s control, while here he is speaking about a case that begins with theft and loss, and that is a double weakness. If it begins with theft and loss and ends with circumstances beyond one’s control that is not necessarily connected to theft and loss, then he will be exempt. Meaning, then he will be exempt even according to the one who says that a case beginning with theft and loss and ending with circumstances beyond one’s control is liable. Tosafot himself says that in practice, a case beginning with theft and loss and ending with circumstances beyond one’s control is exempt. His point here is only that even if we were to say liable, in this case he would be exempt. Why? Because it begins with theft and loss, where the connection between the theft and the uncontrollable event is not a necessary connection. It seems to me that this is how Tosafot should be understood. Okay, let’s step out of this a little bit—I feel you need a few minutes to breathe. We’ll take a few minutes’ breather and come back. “One who has only one cup”—the Talmud in tractate Pesachim 105b says: “One who has only one cup leaves it for the daytime kiddush.” Why? Because the honor of the day takes precedence. But if he has one cup on the conclusion of the Sabbath and he needs to choose between Havdalah and Grace after Meals, Havdalah takes precedence. Why? Because Grace after Meals can be recited even without a cup, but Havdalah requires a cup. And this is the rule established in the Talmud: anything that requires a cup overrides something that does not require a cup. And even if the commandment that does not require a cup is more important, like Grace after Meals, which is from the Torah, nevertheless the commandment that requires a cup receives priority in the use of the one cup a person has. The honor of the day takes precedence over the honor of the night, and therefore the kiddush of the night comes before Grace after Meals and before Havdalah if he has only one cup for the entire Sabbath. And if he has a cup only for Havdalah or for Grace after Meals at the conclusion of the Sabbath, he chooses Havdalah. And this is a principle that also appears in the halakhic authorities in section 271, where they discuss a case in which a person has limited means for fulfilling commandments. Okay. Are you with me? Yes, Rabbi. Fine. I’m asking people to turn on cameras.

[Speaker C] Yes, yes, I’m turning it on, one second.