Receiver Chapter – Lesson 22
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- Personal opening and background
- Summary of the law in the laws of bailees: it begins with negligence and ends with unavoidable accident
- It begins with theft or loss and ends with unavoidable accident: Tosafot, Rabbi Akiva Eiger, and the Rif
- Intermediate halakhic summary before moving to tort law
- Transition to torts: the Mishnah in Bava Kamma 21 and the inference “if they fell, exempt”
- Connecting bailees and torts: the Talmud’s assumption and Rashi
- The Talmud’s case-setting: vessels close to the wall and the claim “there isn’t even a beginning in negligence here”
- Difficulties with the case-setting: factual and halakhic, and Rashba on “unusual behavior”
- Goring by an innocuous ox, unavoidable accident, and fine: the dispute between Rav Pappa and Rav Huna son of Rav Yehoshua on page 15
- It begins with goring by an innocuous ox and ends with unavoidable accident: possibilities and dependence on the question of “full-fledged negligence”
- Rashba: liability for full damages in jumping but exemption in falling because of “negligence that is not full-fledged”
- Ramah and Nimukei Yosef: an innocuous goring ox and the analogy to minimal guarding in damage by foot
- Implications for the Rif according to Rabbi Akiva Eiger and proposed directions for resolution
- Conclusion of the lecture
Summary
General overview
The speaker summarizes the previous discussions about the rule of something that begins with negligence and ends with unavoidable accident in the laws of bailees, concluding that as a matter of Jewish law, if it begins with negligence and ends with unavoidable accident one is liable, and that generally there must be a connection between the negligence and the accident. He presents as a dispute the law of something that begins with theft or loss and ends with unavoidable accident, between Tosafot and Rabbi Akiva Eiger’s understanding of the Rif. He then moves to discuss beginning with negligence and ending with unavoidable accident in tort law through a Mishnah in Bava Kamma 21 about a dog and a goat that jumped or fell from a roof, and shows that the Talmud assumes the amoraic dispute in the laws of bailees is relevant to tort law as well. From the comments of Rashba, Ramah, and Nimukei Yosef, an inquiry emerges as to whether there are gradations of negligence that are not “full-fledged negligence,” and how that affects liability when the end is an unavoidable accident, with a connection to the dispute on page 15 whether half-damages are compensation or a fine, and to the question of the meaning of “minimal guarding” in damage by foot as opposed to goring.
Personal opening and background
The speaker describes that life in Lod has returned to normal, and that what looks wild from far away looks calmer up close, and he refers listeners to his impressions in columns on the website. He opens with an introduction toward the topic on page 56 about an animal tunneling, a shaky wall, and a sound wall, and explains that he is building the groundwork in order to get there.
Summary of the law in the laws of bailees: it begins with negligence and ends with unavoidable accident
The speaker presents that the main discussion of beginning with negligence and ending with unavoidable accident is in the laws of bailees, and that there is a dispute whether one is liable or exempt, but as a matter of Jewish law everyone rules that one is liable. He states that as a matter of Jewish law almost everyone says there must be a connection between the negligence and the unavoidable accident, and notes that among commentators on the Rif perhaps not, but even the Rif himself says that only in Abaye’s view, while in practice the Rif too agrees that as a matter of Jewish law a connection is required.
It begins with theft or loss and ends with unavoidable accident: Tosafot, Rabbi Akiva Eiger, and the Rif
The speaker brings Tosafot’s novel ruling from the passage on page 93 that something which begins with theft or loss and ends with unavoidable accident is exempt, even if something that begins with negligence and ends with unavoidable accident is liable. He presents Rabbi Akiva Eiger’s claim that the Rif does not accept this, because the proof comes from Abaye, who holds that no connection is needed between the negligence and the unavoidable accident, and according to the Rif, in Abaye’s view the liability is “for the negligence itself,” and therefore theft and loss do not create liability until something actually happens. The speaker explains that according to Tosafot, even Abaye requires a connection between negligence and unavoidable accident, and the dispute between Abaye and Rava is not about beginning with negligence at all, but about “it is all negligence, since the angel of death is what came,” on page 36. Therefore according to Tosafot, if Abaye exempts in a case that begins with theft or loss and ends with unavoidable accident, it stands to reason that Rava would exempt as well, and from this the dispute in understanding Abaye spills over into a practical halakhic dispute. The speaker suggests that Tosafot requires a different explanation for the exemption in theft or loss, for example that liability for theft or loss is a kind of “insurance-type” responsibility that does not cover unavoidable accident, and therefore the mechanism of exemption there differs from the Rif’s mechanism in Abaye’s view. That in turn “opens up” the possibility that the Rif himself could agree to exemption for a different reason even in Rava’s view.
Intermediate halakhic summary before moving to tort law
The speaker summarizes that if something begins with negligence and ends with unavoidable accident, one is liable, and that as a matter of Jewish law there must be a connection between the negligence and the unavoidable accident, aside from one opinion among commentators on the Rif that is not accepted in practice. He concludes that plainly, something that begins with theft or loss and ends with unavoidable accident is exempt, following Tosafot; that Rabbi Akiva Eiger claims that according to the Rif one is liable; and that in the speaker’s opinion the Rif’s view is not decisively settled and remains open.
Transition to torts: the Mishnah in Bava Kamma 21 and the inference “if they fell, exempt”
The speaker cites the Mishnah: “A dog and a goat that jumped from the top of a roof and broke vessels pay full damages because they are forewarned.” He explains that plainly this is damage by foot, and therefore it is forewarned from the outset. He then brings the Talmud’s inference that the reason for liability is that they jumped, but if they fell they are exempt, and the baraita that explicitly says “if they fell, they are exempt,” and explains that from here it would seem, if we stopped at this point, that in tort law if something begins with negligence and ends with unavoidable accident, one is exempt.
Connecting bailees and torts: the Talmud’s assumption and Rashi
The speaker emphasizes that the Talmud asks, “This works according to the one who says… exempt, but according to the one who says liable, what can be said?” He shows that Rashi explains that this refers to the amoraic dispute in the chapter HaMafkid on page 42 in the laws of bailees, and from this it emerges that the Talmud assumes that same dispute applies in tort law as well. The speaker notes a theoretical possibility that the Talmud is referring to a different dispute in tort law that is not explicitly recorded, but concludes that according to Rashi the connection between bailees and torts is clear.
The Talmud’s case-setting: vessels close to the wall and the claim “there isn’t even a beginning in negligence here”
The speaker brings the Talmud’s answer that the case involves vessels close to the wall, so that in jumping they do not fall onto them, whereas in falling they do. He explains that according to this there is no beginning with negligence here at all, but rather “it begins with unavoidable accident and ends with unavoidable accident,” and therefore there is exemption. He comments that the definition of “beginning with negligence” depends on the concrete circumstances at the time the animals were placed on the roof, and not on the abstract risk that someone might later put vessels somewhere else.
Difficulties with the case-setting: factual and halakhic, and Rashba on “unusual behavior”
The speaker presents a factual difficulty: how, when jumping, do they break vessels that are right next to the wall, if jumping takes them away from the wall? He also raises a halakhic difficulty: if in jumping they can indeed break nearby vessels and this counts as negligence creating liability, why are they exempt if they fell, since that would be a case that begins with negligence and ends with unavoidable accident? He brings Rashba, who asks that if the vessels are adjacent to the wall, then breaking them by means of jumping is “unusual behavior,” and seemingly should therefore be judged as half-damages; and if you say it is not unusual, it still remains difficult why, if they fell, they are exempt.
Goring by an innocuous ox, unavoidable accident, and fine: the dispute between Rav Pappa and Rav Huna son of Rav Yehoshua on page 15
The speaker brings the discussion on page 15 about “half-damages,” where Rav Pappa says it is compensation and Rav Huna son of Rav Yehoshua says it is a fine, and explains the difference between monetary compensation and a fine. He explains that according to Rav Pappa, ordinary oxen are not presumed guarded, and therefore in principle one should have had to pay everything, but the Merciful One had pity on him until the ox became established as dangerous. According to Rav Huna son of Rav Yehoshua, ordinary oxen are presumed guarded, and in principle one should be entirely exempt, but the Merciful One fined him “so that he should guard his ox.” The speaker adds that the two sides do not necessarily disagree about reality, but rather about the halakhic threshold that distinguishes unavoidable accident from negligence, and he describes goring by an innocuous ox as an intermediate state that is neither ordinary unavoidable accident nor full-fledged negligence.
It begins with goring by an innocuous ox and ends with unavoidable accident: possibilities and dependence on the question of “full-fledged negligence”
The speaker analyzes that if the case of jumping is one of goring by an innocuous ox, there is a possibility of obligating half-damages in the case of falling under the rule of “it begins with negligence and ends with unavoidable accident,” where the negligence is on the level of an innocuous goring ox. On the other hand, there is room to exempt entirely on the basis of “you only apply the novelty where it was specifically introduced,” because an innocuous goring ox is fundamentally a case of unavoidable accident, on which they imposed a fine only when the specific goring damage itself occurs. He presents an additional possibility: that even as a matter of Jewish law, although we rule that it is a fine, one can still view the innocuous goring ox as a kind of “half-accident,” which generates some level of liability even when the end is an unavoidable accident.
Rashba: liability for full damages in jumping but exemption in falling because of “negligence that is not full-fledged”
The speaker explains that in Rashba there emerges an additional level of “weak negligence” that is not “full-fledged negligence,” such that on the one hand, in jumping near the wall one still pays full damages because animals sometimes jump that way and this is not “unusual behavior,” while on the other hand, even according to the one who says that if it begins with negligence and ends with unavoidable accident one is liable, that was said only about full-fledged negligence, and therefore if they fell they are exempt.
Ramah and Nimukei Yosef: an innocuous goring ox and the analogy to minimal guarding in damage by foot
The speaker brings from Nimukei Yosef in the name of Ramah the difficulty that if we are dealing with a situation whose liability is half-damages, then “with regard to half-damages, this is a case that begins with negligence and ends with unavoidable accident,” and if so, if they fell one should have to pay half-damages. He then brings the rejection, that the principle of beginning with negligence and ending with unavoidable accident applies only to full-fledged negligence, and unusual conduct, “which is not its normal way,” is not full-fledged negligence. He cites Nimukei Yosef’s proof from the law that damage by foot is exempt with minimal guarding: were it not for this distinction, there would have been room to impose liability under the rubric of negligence with respect to goring. From here it follows that there is a level of negligence that does not activate the rule of beginning with negligence and ending with unavoidable accident.
Implications for the Rif according to Rabbi Akiva Eiger and proposed directions for resolution
The speaker raises the difficulty of how the Rif, according to Rabbi Akiva Eiger’s claim that something which begins with theft or loss and ends with unavoidable accident is liable, can fit with the discussion here, since the main resolutions rely on distinguishing a beginning that is like theft or loss, or on negligence that is not full-fledged. He suggests a possible direction for maneuvering by distinguishing between the Mishnah and the baraita, and by understanding the cases as involving vessels far away in the case of jumping and vessels close by in the case of falling. He also suggests a theoretical possibility of distinguishing between the laws of bailees and tort law, so that even if in the laws of bailees something that begins with theft or loss and ends with unavoidable accident is liable, in tort law perhaps the liability is an “obligation of responsibility” that in any event does not create liability for unavoidable accident. This depends on the theory whether liabilities for monetary damages are based on negligent guarding or on responsibility for one’s property that caused damage, and also on whether the case is one of negligence or of something akin to theft or loss.
Conclusion of the lecture
The speaker breaks off for a short pause, returns to complete the framing of the various possibilities, and concludes by saying that the discussion will continue in the next lecture, and that there is still a need to build a more complex theory that distinguishes between different kinds of liability in tort law according to the level of negligence.
Full Transcript
[Rabbi Michael Abraham] Okay, let’s begin.
[Speaker B] You told me, come on, let’s start with a bit of an introduction. You went through some kind of process over the last two weeks.
[Rabbi Michael Abraham] What? I didn’t understand.
[Speaker B] You went through some kind of—you live in Lod. Right. Did you stay home? How—how was it by you?
[Rabbi Michael Abraham] Everything’s fine, nothing at all. Yes, everything, everything’s fine. We’re back to normal, everything’s okay. What you see from there, you don’t see from here, as they say. When you look at a place like that from far away, you think it’s the Wild West, and up close it’s not. There were problematic things, but it’s not—fine. Just like when people look at Israel, if someone sees it from abroad they’re sure we’re here in street battles all the time. So there were problems here, but it’s fine, it calmed down. Everything’s okay. Well, some of my impressions you can see in my columns on the website, so you can look there. Okay, let’s begin. The last three sessions we dealt with the law of something that begins with negligence and ends with unavoidable accident, and the motivation really is the passage on page 56 about an animal that tunneled, a shaky wall, a sound wall—to that we’ll get at the end. Right now I’m just building the groundwork so we can get there. So in the last three sessions I dealt with beginning with negligence and ending with unavoidable accident in the laws of bailees. That’s really where the main discussion is. We saw the dispute whether, if it begins with negligence and ends with unavoidable accident, one is liable or exempt. As a matter of Jewish law everyone rules that one is liable. We saw the discussion whether there has to be a connection between the negligence and the unavoidable accident. As a matter of Jewish law almost everyone says yes. Among the commentators on the Rif maybe not, but even the Rif himself says that only in Abaye’s view. As a matter of Jewish law there has to be a connection between the negligence and the unavoidable accident; the Rif agrees too.
And in the end we also saw the discussion about something that begins with theft or loss. That’s a novelty of Tosafot, and Rabbi Akiva Eiger claims the Rif does not accept it. Meaning, Tosafot’s novelty is that even if beginning with negligence and ending with unavoidable accident is liable, if it begins with theft or loss and ends with unavoidable accident, then one would not be liable. That’s Tosafot’s claim, from the passage on page 93—we saw that. Rabbi Akiva Eiger claims that according to the Rif this cannot be correct; the Rif certainly disagrees with it. Why? Because that proof was really a proof from Abaye’s position on page 93—the speaker there is Abaye. Meaning, Abaye holds that you don’t need a connection between the negligence and the unavoidable accident. Which means, Rabbi Akiva Eiger explains, that according to Abaye, as the Rif understands him—the Rif only says that according to Abaye no connection is needed between the negligence and the unavoidable accident, Tosafot doesn’t accept that—but the Rif, in his own approach, says that if according to Abaye you don’t need a connection between the negligence and the unavoidable accident, then how is there liability? Apparently the liability is for the negligence itself. In other words, the moment you were negligent, you became liable. It doesn’t matter whether the object is still intact and standing here. You’re liable, except that if it’s here you can pay with the object itself. That’s all. But in principle you’re liable by virtue of the negligence itself. So he says: if that’s so, then of course Abaye says that if it begins with theft or loss, one will be exempt. Because theft or loss isn’t considered as though you already destroyed the object right now. With negligence, yes; with theft or loss, no. Okay, maybe because it’s responsibility—we discussed a bit the different possibilities.
And therefore what we see on page 93, that according to Abaye something that begins with theft or loss and ends with unavoidable accident is exempt—that’s only Abaye according to his own view. And the Rif, who says that Rava disagrees with Abaye in understanding beginning with negligence and ending with unavoidable accident—if so, according to Rava there is no reason at all to assume that something which begins with theft or loss and ends with unavoidable accident would be exempt. In contrast, Tosafot says that even according to Abaye there has to be a connection between the negligence and the unavoidable accident, and the dispute between Abaye and Rava has nothing to do with beginning with negligence and ending with unavoidable accident. It’s a dispute whether “it is all negligence, since the angel of death is what came,” yes, what we saw on page 36. It’s not related to beginning with negligence; they understand beginning with negligence and ending with unavoidable accident in the same way, Abaye and Rava. So if we proved that according to Abaye, something that begins with theft or loss and ends with unavoidable accident is exempt, then apparently according to Rava too it’s exempt, because there is no dispute between them about the law of beginning with negligence and ending with unavoidable accident.
And therefore the dispute between the Rif and Tosafot—which is seemingly a dispute not relevant to practical Jewish law, because it’s a dispute in Abaye’s view, and his view is not what we rule like—actually spills over into a dispute that remains even as a matter of practical Jewish law. Why? Because the proof in Abaye’s view, according to the Rif, is only Abaye’s view, so it doesn’t remain relevant in practice. But according to Tosafot, the proof in Abaye’s view is also valid for Rava. And therefore this rule, that something beginning with theft or loss is exempt, remains so as a matter of Jewish law as well. So it comes out that the dispute between the Rif and Tosafot about Abaye’s view—which is a dispute about a view not accepted in practical Jewish law—actually spills over or remains as a practical halakhic dispute regarding something that begins with theft or loss. That is Rabbi Akiva Eiger’s claim.
And I said that this doesn’t have to be so, because there was room also to say that something that begins with theft or loss and ends with unavoidable accident would be exempt because it begins with theft or loss. Let me formulate it this way. Why—let’s say we talk about Tosafot. According to Tosafot, something that begins with theft or loss and ends with unavoidable accident is exempt. Why exactly is it exempt? According to Rabbi Akiva Eiger, in the Rif on Abaye’s view, it’s exempt because you don’t become liable for theft or loss if in the end nothing happened; only for negligence are you liable for the negligence itself. Theft or loss, no. But that option is open only in the Rif’s view. In Tosafot’s view, though, even according to Abaye there has to be a connection between the negligence and the unavoidable accident. So according to Rabbi Akiva Eiger, it’s not at all clear why, according to Tosafot, in a case beginning with theft or loss one would be exempt. What’s the difference between beginning with theft or loss and beginning with negligence?
So I said that I suggested a few formulations. One formulation, for example, is that theft or loss is a liability of responsibility, unlike negligence. Therefore, when something begins with negligence and ends with unavoidable accident, I see it as an ongoing act of negligence—because according to Tosafot there has to be a connection between the negligence and the unavoidable accident, so apparently he sees it as an ongoing act of negligence. But when it begins with theft or loss and ends with unavoidable accident, there’s no reason to view this as some ongoing act of negligence, because theft or loss is not negligence. If you didn’t guard enough and it was likely to be stolen, you weren’t negligent. You only undertook a kind of insurance responsibility for what would happen. Now, all of that is fine if theft or loss actually occurred. But if in the end what occurred was unavoidable accident, then there is no insurance—this is force majeure. Insurance doesn’t cover force majeure. And therefore, according to Tosafot, the logic of why something beginning with theft or loss and ending with unavoidable accident is exempt is not the same logic as in Abaye’s view. Since the logic of why something beginning with negligence and ending with unavoidable accident is liable is not the same logic, therefore the reason it is exempt in theft or loss is also not the same logic. Okay? So these are two different approaches, not as Rabbi Akiva Eiger explains.
According to Tosafot we have to say differently from Rabbi Akiva Eiger. Rabbi Akiva Eiger says this in the Rif, but according to Tosafot we have to say differently from Rabbi Akiva Eiger, because Tosafot in fact says that something beginning with theft or loss and ending with unavoidable accident is exempt, even though something beginning with negligence and ending with unavoidable accident is liable, despite the fact that in Tosafot’s view there must be a connection between the negligence and the unavoidable accident, and despite the fact that in his view there is no dispute between Abaye and Rava regarding beginning with negligence. Okay? So apparently the mechanism by which something beginning with theft or loss and ending with unavoidable accident is exempt is a different mechanism from Rabbi Akiva Eiger’s mechanism in the Rif.
Of course, once I say that, now this opens the matter up even according to the Rif. Because what did Rabbi Akiva Eiger claim? That the whole proof in Abaye’s view on page 93 is only Abaye according to his own approach, where Abaye holds that the bailee’s liability is for the negligence itself. Meaning, all of that applies to negligence, but with theft or loss there is no liability for the theft or loss itself. Therefore you can’t say that if it begins with theft or loss and ends with unavoidable accident one should be liable; therefore there one is exempt. But according to Rava, who requires a connection between the negligence and the unavoidable accident, then it’s clear that according to Rava one does not become liable for the negligence itself in a case that begins with negligence and ends with unavoidable accident. Rather, it’s an ongoing act of negligence, right? Therefore Rabbi Akiva Eiger says there is no reason to assume that something which begins with theft or loss and ends with unavoidable accident would be exempt. That would be an ongoing act of theft or loss.
But we already see that if in Tosafot this is not necessary, then in the Rif’s view of Rava it’s also not necessary. Because what the Rif says in Rava doesn’t necessarily differ from what Tosafot says in Rava. The dispute between Tosafot and the Rif is about Abaye’s view. True, a proof from page 93 cannot be brought according to the Rif, because the proof is in Abaye’s view, and according to Rava I don’t know—it remains open. But if I say on logical grounds that Rava also agrees to this for a different reason, that something beginning with theft or loss and ending with unavoidable accident is exempt—what is Tosafot’s reason? Since theft or loss is a liability of responsibility. The Rif can also agree to that; I have no indication that he doesn’t. In Tosafot that explanation is necessary; in the Rif it is not necessary, but it is possible. And Rabbi Akiva Eiger does not prove in the Rif that it’s incorrect. He only says that the proof from page 93—if it is a necessary proof only in Abaye’s view, then in Rava’s view there was room to reject it. True, but there was also room not to reject it. And if I learn Rava logically, like Tosafot, because plainly there is no dispute between the Rif and Tosafot in how to understand Rava—the dispute is only in how to understand Abaye—then if so, one can certainly harness the Rif too to Tosafot’s wagon and say that the Rif also agrees that something beginning with theft or loss and ending with unavoidable accident would be exempt. For a different reason, yes, not for Abaye’s reason but for Tosafot’s reason in Rava. Because the Rif learns Rava the same way Tosafot does. Therefore what Rabbi Akiva Eiger says is not necessary; it’s possible.
So at this point we really have to maneuver among several possibilities. If I summarize where we are now—because I’m now summing up beginning with negligence and ending with unavoidable accident in bailees and moving to tort law—so if I summarize: if something begins with negligence and ends with unavoidable accident, one is liable. In principle there has to be a connection between the negligence and the unavoidable accident, except for one opinion among the commentators on the Rif. Abaye also holds this according to the Rif, but that is not the practical ruling. As a matter of Jewish law there must be a connection between the negligence and the unavoidable accident. What happens with something beginning with theft or loss and ending with unavoidable accident? Plainly, it is exempt. That is what Tosafot says. Rabbi Akiva Eiger, in the Rif’s view, claims that one is liable. And I say that in the Rif’s view I’m not sure that’s correct. Rabbi Akiva Eiger may be right, but it’s not necessary. In the Rif it remains open: you can say exempt, you can say liable. Okay? Good, so that’s the summary of—
[Speaker C] Could you go over again—
[Rabbi Michael Abraham] I hear you very weakly.
[Speaker C] One second, I’ll get closer to the speaker. Can you hear better now? A bit. Maybe it’s your speaker? Maybe your speaker is weak?
[Rabbi Michael Abraham] Mine isn’t, but I’ll check. No, no, on my end I hear the others fine.
[Speaker C] Okay, fine, it’s the microphone I always use, so I don’t know why. What’s the question? Okay, I just wanted—I didn’t fully understand why, how you prove that according to Tosafot this is a liability of responsibility, that theft and loss is a liability of responsibility and not—
[Rabbi Michael Abraham] I’m not proving it. I need an explanation for why according to Tosafot, if it begins with theft or loss and ends with unavoidable accident, it is exempt. According to the Rif I can understand why.
[Speaker C] That I understood, but okay, fine.
[Rabbi Michael Abraham] So I said: one of the possibilities—I presented several possibilities in the previous lecture—one possibility is to say that liability for theft or loss is a liability of responsibility, different in essence from liability for negligence.
[Speaker C] Okay, but that’s not necessary. I just want to understand, because it’s possible to explain Tosafot as still not being a liability of responsibility.
[Rabbi Michael Abraham] Okay, I presented such possibilities in the previous lecture. I offered several formulations there.
[Speaker C] No, so it seems—okay, it seems everything is open, there’s no compulsion. Even according to Tosafot it could go either way, and according to the Rif too, if I understand correctly.
[Rabbi Michael Abraham] No, but according to Tosafot there is no possibility that something beginning with theft or loss and ending with unavoidable accident would be liable. Tosafot clearly says it’s exempt. According to the Rif, the law is in doubt. Rabbi Akiva Eiger claims that according to the Rif, if it begins with theft or loss one is liable, and I’m saying that in the Rif it may be exempt. The explanations of how to understand the liability of theft and loss are a separate discussion. Okay, fine.
Now I want to move to beginning with negligence and ending with unavoidable accident in tort law. And again, the goal is that I’m aiming toward the discussion on our page 56. But the main sugya is on page 21 in Bava Kamma. And I want us to study it now because it will really give us the background for beginning with negligence and ending with unavoidable accident in tort law. By the way, did I send you a summary of the previous lecture? For some reason I didn’t see a file on my end, even though on the website there is a summary file, but for some reason I don’t have a summary file saved, and I’m beginning to worry that maybe I forgot to send it or something. In any case, if anyone wants it, it’s on the website; if anyone wants, I can send it, just let me know and I’ll send it. I mean the previous lecture, lecture twenty-one. Okay.
I begin with the Mishnah—the opening clause of the Mishnah in Bava Kamma 21: “A dog and a goat that jumped from the top of a roof and broke the vessels pay full damages because they are forewarned.” What does that mean? He put his dog or his goat on the roof, these fellows jumped down onto vessels and broke them, so it’s full damages. Why? Because they are forewarned. Plainly, this is probably damage by foot. Because if it were goring, then it would be an innocuous goring case, unusual behavior. Plainly this is damage by foot. And since that’s so, it is forewarned from the outset. They didn’t jump in order to cause damage; they jumped in order to jump, but there happened to be vessels below, so that is considered damage caused in the course of their ordinary movement, and therefore it is damage by foot.
Now the Talmud infers as follows: the reason is that they jumped; but if they fell, exempt. The case is that they jumped from the roof. What happens if they simply fell? The wind blew them off, or they accidentally fell and broke the vessels—exempt. This implies that the Talmudic editor holds that if something begins with negligence and ends with unavoidable accident, one is exempt. How so? How does that inference work? Because if I say that when they jumped he is liable, that means that his putting them up there is negligence. Otherwise why would you say he is liable? He is under compulsion. That’s negligence, because clearly if they had jumped he would have had to pay. But what? In the end they didn’t jump, they fell. And since that’s so, then seemingly what happened in the end was an unavoidable accident. But this is a case that begins with negligence regarding jumping and ends with unavoidable accident regarding falling. And here we see it says that if they jumped, liable, and if they fell, exempt. So we see from here that if something begins with negligence and ends with unavoidable accident, one is exempt. That’s the Talmud’s question.
“A baraita also teaches likewise: A dog and a goat that jumped from the top of a roof and broke vessels pay full damages; if they fell, they are exempt.” Right, so there is a baraita that says this explicitly: if they jumped, they pay full damages, and if they fell, they are exempt. The inference the Talmud made appears explicitly in the baraita.
Practically speaking, for our purposes what emerges from here is that if something begins with negligence and ends with unavoidable accident, one is exempt. If I were to stop here, the most natural thing to say would be: fine, the law of beginning with negligence and ending with unavoidable accident is a law in the laws of bailees. What does that have to do with tort law? In tort law maybe one is indeed exempt. There is no reason to connect bailees to torts. In bailees you have all the discussions we talked about, the bailee’s obligation, whether it is a liability of responsibility or not a liability of responsibility—that does not necessarily have to be the same as tort liability. So if I stopped here, fine. But the Talmud now goes on and says this: “This works according to the one who says that if something begins with negligence and ends with unavoidable accident one is exempt; but according to the one who says liable, what can be said?” And here there is something interesting. Because not only does the Talmud ask this on logical grounds, it says: one moment, but we already have a dispute, and there is one who says that if something begins with negligence and ends with unavoidable accident one is liable. What will he do with the Mishnah or the baraita? Of course the background assumption is that this is a dispute among amoraim and not tannaim, therefore both amoraim are supposed to fit the Mishnah and the baraita.
Now where did we find this dispute? Look at Rashi. “This works according to the one who says”—amoraim dispute this in the chapter HaMafkid on page 42, with the hut of willow branches, which we saw. What is Rashi assuming? That the dispute the Talmud here mentions about beginning with negligence and ending with unavoidable accident is the dispute in the laws of bailees. And the Talmud assumes—not just as logic, but as an assumption—that the same dispute stated in the laws of bailees also exists in tort law. In other words, the Talmud connects the laws of bailees with the laws of torts.
Without Rashi I might perhaps have entertained another possibility, even though we don’t find it explicitly in the Talmud. Maybe the Talmud knew of some dispute also regarding beginning with negligence and ending with unavoidable accident in tort law, and this is not the dispute we know from bailees, but another dispute. And still the Talmud asks, this works according to one view and this works according to the other view. We find things like that throughout the Talmud. Sometimes it asks, “this works according to one who says such-and-such and according to one who says such-and-such,” and nowhere do we find where these views are stated. But the Talmud knows there is such a dispute and refers to it. For some reason, in the editing of the Talmud they didn’t bring it explicitly anywhere, only indirectly. So in principle, in the Talmud itself that is a possible reading. Meaning, perhaps the Talmud assumes—or knows some information—that regarding beginning with negligence and ending with unavoidable accident in tort law too there is a dispute, not necessarily the same dispute as in bailees. Then it asks what the one who says liable will do with this Mishnah. But Rashi here doesn’t say that. Rashi says that the dispute mentioned here in the Talmud is the dispute we saw in the laws of bailees. Meaning, for him it is clear that this law is more general; it is not a law stated only about bailees, it is a law stated also in tort law. Whoever exempts there exempts here too; whoever obligates there obligates here too. And therefore the Talmud asks about that same dispute there: how does the one who says liable fit with the Talmud here, with the Mishnah here?
So the Talmud answers—that’s the question, yes—so the Talmud answers: “For example, where the vessels were close to the wall, so that when they jumped, in jumping they would not fall on them, and there isn’t even a beginning in negligence here.” This means: we are dealing with a case where the vessels were very close to the wall, adjacent to the wall. Now when the goat or dog jumps, they jump forward. So they jump some distance away from the wall, let’s say two meters forward. So the vessels adjacent to the wall are not hit in such a case. In contrast, when they fall, they of course fall right next to the wall, and they break the vessels—then they break the vessels. So the Talmud says that here we are dealing with a case where the vessels below were adjacent to the wall. Then what happens? If they had jumped, they would not have broken the vessels at all. Therefore there isn’t even a beginning in negligence here. Why were they ultimately broken? Because in the end they didn’t jump, they fell. And when they fall, they fall straight down next to the wall and they broke them. But the fall is an unavoidable accident. So what comes out is that this is a case that begins with unavoidable accident and ends with unavoidable accident, and therefore one is exempt. That is what the Talmud says. In other words, it gives a specific case-setting: we are dealing with vessels adjacent to the wall, and therefore there is no case here of beginning with negligence.
For our purposes, if there were here a case of beginning with negligence, then indeed the law here would depend on the dispute we found in the laws of bailees—liable or exempt, the same two opinions we saw there. But here there is a case-setting according to which there was no negligence; it is simply unavoidable accident, and therefore exempt. Clear?
[Speaker E] That of course brings us back to an obvious question. Every so often he disconnects the file—
[Rabbi Michael Abraham] Because I want to see you a bit. So fine, when I’m reading I share, but otherwise I— Shlomo, are you with us? Shlomo Bati or Vati, I don’t know how to pronounce it?
[Speaker F] Here, here I am.
[Rabbi Michael Abraham] Fine. What about the camera?
[Speaker F] Okay, give me a minute, I’ll turn it on.
[Rabbi Michael Abraham] Okay. So the claim is basically this. There is a certain novelty here, first of all, that whether something begins with negligence and ends with unavoidable accident depends on what the situation was at the moment of the negligence. The Talmud says: in the end, if someone had placed vessels far from the wall, then they could have been broken. After all, there is here a dog or goat standing there who generally jump. Meaning, it’s a reasonable assumption that they will jump. Now I put them on the roof, and the vessels were adjacent to the wall. The Talmud says that this is not called beginning with negligence. Why? Because beginning with negligence would be if someone had placed vessels a bit farther away. We see in the Talmud that beginning with negligence depends on the specific circumstances that prevail right now, not on circumstances in principle. If I brought them up to the roof, checked, and saw there were no vessels that could be broken, that’s fine; I’m allowed to do it; it’s not called negligence. I saw there were vessels adjacent to the wall—that’s fine; when they jump they do not break the adjacent vessels, so that is not called negligence.
Because there was room to say otherwise. There was room to say: what do you mean? In a place where you know they might jump, after all someone could place vessels there—and let’s say these are vessels in my fellow’s courtyard in principle, not vessels in my own courtyard. Otherwise I’d be exempt anyway—what are you doing placing the vessels in my courtyard? Okay? So these are probably vessels placed in my fellow’s courtyard, and he can decide to put the vessels one or two meters away from my wall. How can I allow myself to put a dog or goat up above? We see here in the Talmud—and this is a novelty, again I won’t get into it now, just know in the background—that the rule of beginning with negligence is defined by the situation that prevailed at the moment I placed the dog or goat on the roof. Okay? So that’s the first point.
[Speaker E] The second point is that there are really two difficulties in the Talmud’s case-setting. There is a factual difficulty and a halakhic difficulty. The factual difficulty is: what exactly does the Mishnah say?
[Rabbi Michael Abraham] The Mishnah says that the dog and the goat that jumped are liable, right? But if they jumped, how did they break the vessels? After all, we’re talking about a case where there weren’t vessels—there were vessels adjacent to the side, to the wall. If they jumped, they jump far away. Factually, how did they break the vessels? They would only be broken by falling. And on the other hand, if in jumping they do break vessels where those vessels are located, and one is even liable to pay as our Mishnah says, then why, when they fell, is he exempt? After all, this is beginning with negligence, not beginning with unavoidable accident. The Talmud said the vessels are adjacent to the wall—why? Because there it’s not beginning with negligence. It’s all unavoidable accident. Because if they’re adjacent to the wall, then in a jump these vessels should not be broken. So I don’t understand—then why are they liable for them? If they jumped and broke them, it says they are liable. So first, a factual difficulty: how can it be that they broke the vessels if the vessels are adjacent and they jumped? If they fell, I understand how the vessels were broken. But if they jumped—the dog and the goat—how were they broken? Factually that doesn’t happen.
The halakhic difficulty: assuming that in jumping they nevertheless can break the vessels, and you tell me that they’re liable when they jumped and broke the vessels, then why if they fell are they exempt? You tell me they’re exempt because this is not beginning with negligence, but that’s not true; it is beginning with negligence. The proof is that if they jump, I do obligate him—he was negligent. So why, if they fell, do I exempt him? This is a case that begins with negligence and ends with unavoidable accident. What have you gained? You want to explain this according to the one who says that if something begins with negligence and ends with unavoidable accident one is liable, and you want to say that here it says exempt—no, it says exempt because this is not beginning with negligence, it says exempt because it’s all unavoidable accident. But that’s not right. Decide one way or the other. If you tell me that vessels like these are not supposed to be broken, then explain to me how they were broken in jumping, factually—how did that happen? And if it can happen—you tell me yes, it can happen, and the proof is that he is liable for full damages if they broke them by jumping even though the vessels are close—then if they jumped, after all we are talking about close vessels, and about that the Mishnah and baraita say that if they jumped they are liable to pay for close vessels. So what you’re really telling me is that this is negligence, that breaking close vessels by jumping is negligence. So if that’s negligence, then it is beginning with negligence. Then even if they later fell—
[Speaker E] —that is beginning with negligence and ending with unavoidable accident, which should make him liable. The whole story here is not clear. So it’s both a factual difficulty and a halakhic difficulty. So Rashba here addresses, indirectly, the halakhic difficulty and not the factual one.
[Rabbi Michael Abraham] We’ll see later that Tosafot asks the factual question. But Rashba asks like this, while also raising a third difficulty, which is also a halakhic difficulty: “For when they jump, they jump outward.” Rashba asks: if so, then even if they broke by way of jumping, why should he pay full damages? After all, this is unusual behavior. What are you telling me—that the vessels were close? Vessels that are close are not supposed to be broken by the jump of the dog and the goat, right? That’s the whole idea. Therefore I set it up as vessels close to the wall, because in such a case they are not supposed to be broken by the jump. Fine. So now these fellows somehow jumped close in, they jumped in a kind of free-fall, they didn’t jump far the way they usually do. So you understand that this is unusual damage; it’s not the expected type of damage. If so, one should pay half-damages, not full damages.
[Speaker E] Unusual behavior is goring. Does goring pay full damages? “And even then it would still remain difficult for us, since this is a case that begins with negligence.” What will you tell me? That this isn’t unusual damage, it’s ordinary damage? “It would still remain difficult for us, since this is a case that begins with negligence.”
[Rabbi Michael Abraham] Yes, what’s difficult? Then why, if they fell, is he exempt? After all, you’re telling me this is ordinary damage. If this is ordinary damage, then it comes out that this is negligence. So why, if they fell, are they exempt? This is a case that begins with negligence and ends with unavoidable accident. It begins with negligence regarding jumping, and ends with unavoidable accident in the form of falling. Here he is already raising the halakhic difficulty that I mentioned. But he begins with another halakhic difficulty. He says first of all that in my opinion this is an innocuous goring case and one should pay half-damages, not full damages. Then he says: and if not—meaning, what will you tell me? No, one pays full damages because this is full-fledged negligence, it’s not an innocuous goring case—then why, if they fell, are they exempt? This is a case that begins with negligence and ends with unavoidable accident.
“And if it is not negligence, then the world is presumed guarded, and it is impossible to obligate him for more than half-damages, because at the very least, even though you remove this from the category of unavoidable accident, you do not remove it from the category of unusual behavior.” What is Rashba assuming here? Rashba is really assuming that if the vessels were close to the wall, we have three possibilities for understanding this situation. One possibility is that these vessels are liable to be damaged by a jump. Okay? Three possibilities for how to relate to this situation. One possibility: these vessels are liable to be damaged by a jump. That cannot be, because the whole point of the Talmud is that this is a case of unavoidable accident and they are not at all likely to be broken by a jump. But if it’s unavoidable accident, then why if they jumped is he liable? He’s under compulsion. That’s the first difficulty.
The third possibility—sorry, the second possibility—the first difficulty was why, if they fell, they are exempt. The second difficulty is why, if they jumped, they are liable. The third possibility—sorry—so what will you tell me? It’s not unavoidable accident, but it’s also not full-fledged negligence; it’s like an innocuous goring case. If that’s so, then when they jumped what should the law be? That he is liable for half-damages, not full damages, because it’s an innocuous goring case, it’s unusual behavior. It can happen, it’s not far-fetched, it’s not a complete unavoidable accident, but still it’s an innocuous goring case, it’s unusual behavior, and on the basic level one should pay half-damages for it. By the way, an interesting question: if I assume like the third possibility that in jumping one really becomes liable here for half-damages, what would the law be in the case of falling? What do you say? Half-damages.
[Speaker G] If—
[Rabbi Michael Abraham] I adopt the third possibility: vessels that are close to the wall, and a dog and a kid jump onto them and break them—that’s on the level of an innocuous horn, like a non-habitual goring case. It’s unusual, but it’s not a complete accident. It’s unusual, so you have to pay half damages. Okay, now that’s my assumption. Now what actually happened in practice is not that they jumped—they fell. They fell accidentally and broke those vessels. What should the law be in that situation, according to the assumption I made earlier?
[Speaker D] Exempt. Why? Because the beginning isn’t negligence; it’s not something that’s classified as habitual.
[Rabbi Michael Abraham] He’s liable for half damages. You could say two things here.
[Speaker H] But it’s not half—if they fell, that’s not half damages; if they fell, he’s completely exempt, no?
[Rabbi Michael Abraham] Why? After all, this is a case whose beginning is like an innocuous horn case and whose end is an accident. The negligence of an innocuous horn case obligates half damages. So if it begins with negligence and ends with an accident, you obligate him just as you would have obligated him for the negligence.
[Speaker H] But horn means intent to damage. Here there was no intent to damage—they fell. This isn’t horn; you can’t call it horn.
[Rabbi Michael Abraham] Obviously. That’s why I’m talking about a case that begins with negligence and ends with an accident—not the negligence itself. The end was an accident, I agree, but the whole idea of “it begins with negligence and ends with an accident” is that even though the end was an accident, I treat it as though the negligence happened here and obligate him as though the negligence happened here. So here too I should obligate him as though the whole business were like an innocuous horn case—half damages.
[Speaker D] But “it begins with negligence and ends with an accident” isn’t the same as “it begins like an innocuous horn case and ends with an accident.” We also had the law of “it begins with…” — that was in theft, I don’t remember exactly how.
[Rabbi Michael Abraham] It begins with theft or loss.
[Speaker D] Right, it begins with theft or loss and ends with an accident.
[Rabbi Michael Abraham] I’ll get to that in a second, but let’s leave it aside for a moment—I’m trying to do this didactically. So in principle there are two possibilities here. One possibility is to say that there are half damages even in the case of falling, because just as when something begins with negligence and ends with an accident, for the negligence you’d be liable for full damages, so too for the accident—where in principle you should have been exempt—they obligate me full damages as though the whole thing were negligence. The same here: I extend the idea of an innocuous horn case. An innocuous horn case that ends in an accident—for me, the whole thing is an innocuous horn case, and I’m liable for half damages. The second possibility is to say no: if it begins like an innocuous horn case and ends with an accident, then he is completely exempt. Why is he completely exempt? Because an innocuous horn case is an accident. An innocuous horn case is not negligence for which one merely pays half damages; an innocuous horn case is an accident. It’s just that the Torah introduced a novelty: even so, for an innocuous horn case one pays half damages as a fine, “so that he should guard his ox,” as the Talmud says. In a moment I’ll mention that Talmudic passage. So apparently what you really have here is a complete accident; it’s only that the Torah innovated that they fined him to pay half damages. Okay, that’s all if the actual horn-type damage occurred. But if in the end there was an accident—where do you find that there is a special fine for the final accident? This is a case that begins with an accident and ends with an accident, and I’m exempt. You can’t extend the novelty beyond what was stated. The whole novelty is that when horn-damage occurs, even though really I should be exempt because I’m under compulsion, they obligate me to pay half damages as a fine. Fine—that’s what the Torah innovated. But you can’t extend the novelty beyond what was stated. In the end, conceptually, this really is an accident. So if at the beginning this is an accident, and at the end a different accident occurred, then it begins with an accident and ends with an accident, and he should be completely exempt. Those are the two possibilities.
[Speaker D] But Rabbi, I’m just not totally familiar with all these laws—but didn’t you say that an innocuous horn case is something the Torah innovated? Okay, okay, fine. That answers my question.
[Rabbi Michael Abraham] Okay. No—not in every accidental damage case do you pay half damages. Absolutely not. In an accident, in principle, you’re exempt. Say an animal tunneled under a wall—but the wall was a solid wall—then I’m exempt. I’m under compulsion. There wasn’t a case here of “it begins with negligence and ends with an accident.” Nobody said I have to pay half damages. We’ll see that in our passage. Anyway, so apparently those are the two possibilities.
[Speaker E] But to understand better, I want to go back with you for a moment to the Talmud on page 15a, where this dispute is brought. It was stated: half damages…
[Rabbi Michael Abraham] Rav Pappa said it is compensation, and Rav Huna the son of Rav Yehoshua said it is a fine. Right, there is a dispute about half damages. You know generally what the difference is between compensation and a fine? Compensation means you pay for what you damaged, or what you owe—in other words, what you pay is commensurate with the problem here. Okay? When the payment is not commensurate with the problem, usually that’s a fine. For example, double payment by a thief is a fine. Or when the payment is a fixed amount, regardless of the extent of the damage you caused or the amount of the damage you caused—there’s a fixed payment. Once the payment is fixed, that too is a fine, because we see there’s no connection between the amount of the payment and the basis for the payment. That indicates that we’re talking about a fine. Now in an innocuous horn case you pay half damages. There’s room to hesitate here. It’s half damages in the sense that true, it’s not the full amount of the damage, but on the other hand it’s not a fixed amount. It’s half of what you caused. Okay? So this can be interpreted in either direction. And the Talmud really says: it was stated—half damages. Rav Pappa said it is compensation, and Rav Huna the son of Rav Yehoshua said it is a fine. Now the Talmud explains: Rav Pappa said it is compensation, because he holds that ordinary oxen are not presumed to be guarded, and really he ought to pay the entire amount, but the Merciful One had pity on him because his ox had not yet been established as habitual. Why does Rav Pappa say this is compensation? Because basically he holds that ordinary oxen are not presumed to be guarded. An ox is basically always prone to gore—even from birth. It doesn’t need to gore three times for us to assume that it has a tendency to gore; from birth it is prone to gore. Ordinary oxen are not presumed to be guarded. You can’t just assume that this ox is harmless. And therefore, in principle, you should have had to pay full damages from the very beginning, from the first goring. Except that the Torah had pity on you, because you haven’t yet been warned and it hasn’t happened three times, so it may be that a reasonable person isn’t really aware of it yet, and therefore they had pity on you and require you to pay only half. But on the conceptual level, they gave you a break. Strictly speaking, you should have had to pay full damages. That means the payment is compensation. And even after they had pity on you and you pay half, that half is still compensation. It’s half of the one whole payment you really owed. That is Rav Pappa’s view. The law follows Rav Huna the son of Rav Yehoshua, that it is a fine. Rav Huna the son of Rav Yehoshua said it is a fine: ordinary oxen are presumed to be guarded, and really he ought not to pay at all, but the Merciful One fined him so that he should guard his ox. He holds the opposite. Ordinary oxen are presumed to be guarded. An ox that is born is not presumed to be in the category of one liable to gore. After it has gored three times, then it becomes clear that it really is a gorer. But as long as that hasn’t happened, I as the owner am allowed to assume it is not a goring ox, and I don’t need to guard it. Therefore, strictly speaking, I should have been exempt from the damages. Yet the Merciful One fined him to pay half damages so that he should guard his ox. Even so, the Torah fined me to pay half damages, in order to give me an incentive to guard it anyway, although strictly speaking I wouldn’t have had to. Now apparently that dispute is exactly what lies at the root of the two possibilities I raised earlier. Right? The two possibilities I raised earlier are basically these. Suppose I adopt the view that when the dog and the kid jump, one pays for vessels close to the wall—pays half damages, like an innocuous horn case. For the sake of discussion, that’s my assumption. Okay? Now the question is how I interpret this situation. Is this… basically a situation where I’m under compulsion, but they just fined me to make sure I would guard it? If so, then once it ends in an accident—they fell and didn’t jump—apparently I should be exempt. It begins with an accident and ends with an accident. True, if they had jumped they would have fined me to pay half damages—that’s a novelty of the Torah. Even though I’m under compulsion, they would have fined me half damages. But you can’t extend the novelty beyond what was stated. What happened in the end was an accident: they didn’t jump, they fell. So it begins with an accident and ends with an accident; I’m simply exempt. But if I understand it like Rav Pappa, that half damages is compensation, that means that basically I am negligent and at fault for not guarding it. They had pity on me, but in principle I’m negligent. Then this is a case that begins with negligence and ends with an accident. So I was negligent because there was a possibility they would jump, and in the end they fell—they didn’t jump. Okay? That is a case that begins with negligence and ends with an accident, and I should be liable. Apparently it depends on that.
[Speaker I] Meaning, the reasoning of Rav Pappa brought on page 15—that half damages is compensation—you could say in other words that it means “it begins with negligence and ends with an accident.” That’s basically… no, no.
[Rabbi Michael Abraham] Rav Pappa’s reasoning is about an ox that in the end actually gored.
[Speaker I] An ox that gored—that it was negligence not to guard it; he should have guarded it…
[Rabbi Michael Abraham] That’s all negligence. It’s not “it begins with negligence and ends with an accident.” It’s all negligence. Only in the case of the dog and the kid, who were about to jump and in the end fell—if they had jumped, that would all have been negligence of the innocuous horn type; you’d pay half damages as compensation according to Rav Pappa. But what happens when they fell in the end? Then it began with negligence, but what actually happened in the end was an accident. That’s not like a regular goring of an innocuous horn case. So apparently it depends on this dispute. But if it depends on this dispute, as I said, the law follows Rav Huna the son of Rav Yehoshua. In practice we rule that half damages is a fine. And therefore, simply speaking, it would seem that here he should be exempt. We’ll soon see that there are medieval authorities who claim that he is liable for half damages even for the falling. And I want to refine a bit the way I presented the dispute of the Amoraim on page 15. As David rightly asked earlier on the side: why don’t we fine everyone who is under compulsion and make him pay half damages?
[Speaker E] “So that he should guard his ox.” Why only for horn damages do we do this? Because clearly, in the case of an innocuous horn, this isn’t a complete accident. Clearly there is a certain element of negligence here.
[Rabbi Michael Abraham] It isn’t enough to obligate him under strict law, and so the Torah says: okay, but we will impose a fine of half damages to spur you to guard it. But clearly this is an intermediate state—it’s not an ordinary accident. And on the other hand, let’s speak about Rav Pappa, who says this is compensation. Why did the Torah here have pity on him and make him pay half damages, while in fire, pit, foot, or tooth damages it didn’t have pity on him? Because he too agrees that this is not full-fledged fault. Although he says that ordinary oxen are not presumed guarded, he understands that this is not damage that is completely expected. Or in other words: people often say there is no such thing as a dispute about facts. Why? The motivation for saying that is to say that no Amora made a mistake. Because in a factual dispute, if one is right then the other is wrong—only one can be right. You can’t say “both these and those are the words of the living God” about a factual dispute. So that’s a kind of motivation in the yeshiva world to say there is no such thing as a dispute about facts. That’s nonsense, of course. But it is true that in many disputes that superficially look like factual disputes, they are not. For example here: apparently this is a factual dispute. The question is whether ordinary oxen are presumed guarded. Is an ox, before it has been proven to be a gorer—before it has gored three times—still considered prone to gore or not? Apparently that’s a factual dispute. What I just showed you is that clearly it is not, or almost certainly not. In the end, everybody agrees there is an intermediate state here, something between negligence and accident. And the question in dispute between Rav Pappa and Rav Huna the son of Rav Yehoshua is where the threshold runs that separates negligence from accident. Does it run above the case of innocuous horn, or below it? That’s all. They have no factual dispute at all about the likelihood that a newborn ox will gore. Let’s say, I don’t know, the chance is twenty percent. Their dispute is whether the threshold that turns the ox into one that one must guard lies at thirty percent or ten percent. That is a halakhic dispute, not a factual one. If the threshold is thirty percent, then ordinary oxen are presumed guarded—you can’t say it’s already liable to be guarded, because it’s only twenty percent. But obviously it’s more dangerous than foot-damage—which is zero percent. Or no, sorry, than an accident, which is nothing, where you are exempt. And like the case where it tunneled under a sound wall. There it’s zero—you’re exempt. Everyone agrees that this is more than that, but it still doesn’t reach the threshold of negligence. So what do we do? We say: okay, then you’ll pay a fine of half damages, to spur you in these cases nevertheless to guard it. They didn’t impose a fine in the case of an animal tunneling under a wall, because there you really were guarding it—what do they want from you? You did what you were supposed to do. There’s no reason to spur you to do more. Now, that’s according to Rav Huna the son of Rav Yehoshua. And according to Rav Pappa, he too agrees that the chance the ox will gore is twenty percent; he has no factual dispute with Rav Huna the son of Rav Yehoshua. He only claims that the threshold of negligence is at ten percent, not at twenty percent. And therefore, in principle, you are considered negligent. Except that compared with damaging agents whose probability of causing damage is forty percent, of course negligence at a twenty percent probability is lighter negligence. So the Torah had pity on you and says: pay half damages. But conceptually this is compensation—you need to pay. Now you understand that if so, there is definitely room to maneuver already in our own passage. Because now the question is whether something happened—say I put a dog and a kid on the roof, and if they had jumped I’d be liable like an innocuous horn case. And now I go with Rav Huna the son of Rav Yehoshua, whose view is the law, that an innocuous horn case is a fine. Fine is fine, but on the conceptual level—true, ordinary oxen are presumed guarded, but not absolutely presumed guarded. There is some measure of negligence here. One can definitely say that just as full negligence that ends in an accident is still “begins with negligence and ends with an accident,” so too partial negligence that ends in a partial accident—you pay what you would have paid for the partial negligence. And therefore they will fine you even for the accident. I think that’s the way to explain even the practical law: we rule like Rav Huna the son of Rav Yehoshua, that half damages is a fine and there is an element of compulsion, and still there is room to say that if the dog and the kid fell, they would still be liable for half damages. Even though this is “it begins with an accident and ends with an accident,” because it’s not really an accident. It begins with a half-accident and ends with an accident. You can already see how we’re getting close to the category of “it begins with theft or loss.” But we’ll get to that in a few minutes after the break. Let’s take a few minutes to refresh. That’s it. Five minutes. Okay. Everyone…
[Speaker G] …back? David, are you with us? Shlomo? David and Shlomo? Maybe Shlomo went for a little afternoon nap.
[Speaker J] Okay,
[Speaker E] let’s say hello.
[Rabbi Michael Abraham] Okay, so let’s come back for a moment. I spoke about two possibilities—or really three possibilities—for understanding the situation when the dog and the kid jump and the vessels are close to the wall. I said there are three possible ways to treat such a case. One possibility is that it is a complete accident. A second possibility is that it is like an innocuous horn case—let’s call it a kind of partial accident. A third possibility is that it is negligence. According to each of these possibilities, of course the payment for the jump is full damages, half damages, or nothing. But the payment for the fall is also derived from that. If it’s a complete accident, then for the fall too they are exempt. If it is negligence, then for the fall too they are liable, because that is a case that begins with negligence and ends with an accident. And if it is horn, then I said there are two possibilities. It depends how we understand a case that begins like an innocuous horn case and ends with an accident. And I explained that this won’t necessarily depend on the dispute between Rav Pappa and Rav Huna the son of Rav Yehoshua; even in practical halakhah one could still hesitate on this issue. Now I want to ask you: what do you think the Rashba holds on this matter? Let’s read it again now with those lenses. “If so, they jump outward, they jump. There is room to ask: if so, then even an ox—why, when it jumps in the normal way, does he pay full damages? It is unusual.” So how does the Rashba understand it? Basically this is like an innocuous horn case, right? He pays half damages. Now he says: “For if not, here we should have the difficulty that it begins with negligence, and if it is not negligence then it is evidently considered guarded, and it is impossible to obligate him for more than half damages, for at the very least, even if you remove it from the category of accident, you do not remove it from the category of unusual behavior.” What is he talking about here—the jump or the fall? On the face of it, it seems that the Rashba understands that even if the jump is considered like an innocuous horn case, for the fall one is exempt. That is called beginning with an accident and ending with an accident. And therefore he says: why here does he pay full damages? After all, it is unusual. And if you tell me that it’s not unusual, then you’ll have a problem: with full damages, this would have to be “it begins with negligence and ends with an accident,” and then you’d also obligate him for the fall. Therefore, you are forced to say that he should pay half damages, in order to explain why in the case of falling he is exempt. So why does it say here full damages and not half damages? That is the Rashba’s difficulty. What is he assuming? That if it really were half—if it had said here half damages—everything would have been fine for him, right? Why would that have been fine? After all, it still says that for the fall he is exempt. For the jump he is liable for half damages, and for the fall he is exempt. How can he be exempt? After all, it begins like an innocuous horn case and ends with an accident—so give him half damages. You see that according to the Rashba, a case that begins like an innocuous horn case and ends with an accident is completely exempt; it is not half damages. Right? That’s what seems to emerge from his question. Because basically he is setting two possibilities against each other. Either it is negligence, or it is like an innocuous horn case. What does that mean? On the one hand, it says it is negligence and he pays full damages. But if so, I don’t understand why in the case of falling he is exempt—after all, that should be a case that begins with negligence and ends with an accident. Therefore, necessarily, this must be like an innocuous horn case, where one pays half damages, and then I understand why if they fell he is exempt, because that is a case that begins like an innocuous horn case and ends with an accident—and that is exempt. I just don’t understand why it says here that he pays full damages; it should be half damages. That is the Rashba’s question. In other words, it seems from the question that he assumes that if it were an innocuous horn case in the jumping, then for the falling they really would be completely exempt. A case that begins like an innocuous horn case and ends with an accident should be exempt according to the Rashba. I’ll say that, with some pressure, you could perhaps understand him differently from what follows. What does he say next? “And if it is not negligence, then it is evident that it is considered guarded,” and then what? Since if this is not negligence but rather like an innocuous horn case, then it is considered guarded—like ordinary oxen, which in the conclusion are presumed guarded, right? “And it is impossible to obligate him for more than half damages”—for what? Impossible to obligate him for more than half damages—for the jump or for the fall? For the jump. That’s the question. Until now I assumed it was for the jump. Maybe—maybe here he suddenly shifts to speaking about the fall. And he says that since at the beginning this is an innocuous horn case, then perhaps even for the fall you really cannot obligate him for more than half damages, because “even if you remove it from the category of accident, you do not remove it from the category of unusual behavior.” But it’s unlikely that that’s what he means, because what do you mean “you cannot obligate him for more than half damages”? He should have asked the opposite—you should have obligated him for half damages, because the ruling in the case of falling is exemption. “You cannot obligate him for more than half damages” implies that he is challenging the liability in the jumping—why is it full damages? After all, you cannot obligate more than half damages. Right? So it seems that the Rashba really is speaking here all along about the liability in the jumping, not the falling. And what bothers him is basically the question why one pays full damages for the jump and not half. The fact that for the fall he is exempt doesn’t bother him. It doesn’t bother him if the jump had been half damages. If the jump is full damages, then why for the fall is he exempt? After all, that should be a case that begins with negligence and ends with an accident. But if for the jump this is an innocuous horn case, then it doesn’t bother him that for the fall he would be exempt—that’s exactly what should be. That seems to be the Rashba’s view.
[Speaker D] So I just want to understand: according to the Rashba, “it begins with negligence and ends with an accident” carries over very, very smoothly from the laws of bailees to the laws of damages.
[Rabbi Michael Abraham] Correct. At this point, that’s according to everyone—even according to Rashi, according to everybody. But the Rashba says: yes, but not when it begins like an innocuous horn case. If it begins like an innocuous horn case and ends with an accident, then it is completely exempt. Right? That’s what seems from his wording. Yes, yes. Now let’s see—that’s his difficulty, right? So why don’t they pay half? “And one can say that regarding jumping near the wall, we do not consider him at the outset a full negligent party, such that he would be liable even for the accident at the end. For even the one who says that when it begins with negligence and ends with an accident he is liable—that is said only in a case of full negligence. But nevertheless, whenever they jumped, even close to the wall, since they jumped intentionally and they sometimes jump in this way, we do not consider it unusual behavior, and he pays full damages. So it appears.” What is he saying?
[Speaker D] It’s like there’s enough negligence to obligate full damages, but not enough negligence to classify it as “it begins with negligence and ends with an accident” with respect to the fall.
[Rabbi Michael Abraham] And note: he assumes that for the jump one is liable for full damages, as the Talmud says—not half damages. It is not like an innocuous horn case. It is not like an innocuous horn case. This is a beginning of negligence, not the beginning of slight negligence like in the innocuous horn case. This is a beginning of negligence. If it begins like an innocuous horn case and ends with an accident—he is completely exempt. If it begins with full negligence and ends with an accident—he is fully liable. If it begins with slight negligence—not of the innocuous horn type, but like here—then in the end, when it ends in an accident, he will be exempt.
[Speaker D] So he’s putting another stage in the middle? What?
[Rabbi Michael Abraham] I can’t hear?
[Speaker D] He’s putting a middle stage between negligence and innocuous horn.
[Rabbi Michael Abraham] Right. And it’s interesting that he needs to say that, and that this is not the same state as beginning like an innocuous horn case. True, both in a case that begins like an innocuous horn case and ends with an accident, and in a case that begins with slight negligence and ends with an accident, the result is exemption—but it’s not the same thing. If it begins like an innocuous horn case, then for that innocuous horn case itself he pays half damages. For slight negligence, if the slight negligence itself actually occurs, he pays full damages, not half. Even so, if in the end it ends with an accident, he will be exempt. Here, it seems to me, we have written the foundation of “it begins with theft or loss.” The Rashba is now really continuing the principle we saw in the laws of bailees—what you said, David, earlier—and he continues to compare the laws of damages to the laws of bailees completely. Not only regarding “it begins with negligence and ends with an accident” in general, but also the qualification regarding “it begins with theft or loss.” For we saw in the laws of bailees that if it begins with theft or loss and ends with an accident, he is exempt. In damages too it is so, says the Rashba. And our case here is one that begins with theft or loss, with slight negligence, even though for that he pays full damages. That’s his normal way—it’s not unusual—this is its way, to jump there. If it jumped, I will pay full damages, but if it didn’t jump and rather fell, then this is a case that begins with negligence and ends with an accident. Of course, in light of what he says here, one could have said the same thing but without his novelty—one could have spoken about an innocuous horn case. To say that really, if they jumped one would pay half damages and this would be an innocuous horn case, but even an innocuous horn case falls under the category of a case that begins with slight negligence and ends with an accident, and therefore one is exempt, like the principle of beginning with theft or loss. Then you wouldn’t need to introduce this additional degree that the Rashba adds. Why doesn’t the Rashba accept that? Because the Talmud text flatly says otherwise. The Talmud says that if they jumped, he pays full damages, not half. If this were an innocuous horn case, then if they jumped he should pay half damages, not full damages. Therefore that option is simply off the table—that’s what the Rashba rejects outright. So he has no choice. What remains for him is to say: okay, so here we are dealing with a case that begins with slight negligence, such that if it occurs one pays full damages, but if it ends with an accident, then you are exempt. And an innocuous horn case would also have that law—but that is not the case here. That is the Rashba’s position. Clear?
[Speaker E] And in the Nimukei Yosef, look what he brings in the name of the Ramah: “And if so, then when they fell too, he should obligate them for half damages. For with respect to half damages, this is a case that begins with negligence and ends with an accident.” The Ritva says: that is not so. Right, the first line is brought from the Ramah. Ramah with a heh.
[Rabbi Michael Abraham] What does the Ramah assume? Just look at the first line for now. Afterward, “that is not so” is already the Nimukei Yosef. What does the Ramah assume?
[Speaker D] That a case that begins like an innocuous horn case and ends with an accident is liable.
[Rabbi Michael Abraham] No—first of all, he assumes what the actual case is, which of the three possibilities it is for the jump. What does one pay for the jump?
[Speaker D] Half damages.
[Rabbi Michael Abraham] Half damages, right. And he explains that with vessels close to the wall, if the dog and the kid jump and break them, they are liable for half damages—not as the Rashba says, full damages. It is an innocuous horn case. And he says that if it begins like an innocuous horn case and ends with an accident, what is the law? Liable. Liable for half. In that too he disagrees with the Rashba.
[Speaker D] Not that he’s liable for the innocuous horn itself—it would be disconnected to make him pay full damages if you obligate him for the innocuous horn itself.
[Rabbi Michael Abraham] You extend the innocuous horn classification even to the accident. So the Ramah disagrees with the Rashba in two ways. One dispute is that he claims that in the jump one pays half damages and not full damages. The Rashba claims it is full damages.
[Speaker J] So how will he explain the Talmud, where jumping is full damages?
[Rabbi Michael Abraham] One second, one second. The second dispute with the Rashba is what happens in the fall. Because the Rashba claims that if for the jump they would have been liable for half damages, then for the fall they would be completely exempt. And he claims that if for the jump they are liable for half damages, then for the fall too they are liable for half damages. Because a case that begins like an innocuous horn case and ends with an accident should obligate half damages. And that is the question he asks: why does it say in our case that if they fell they are exempt? It should have been half damages. But he doesn’t ask why for the jump they are liable for half damages. For some reason that passes smoothly for him. He only says: if already for the jump they are liable for half damages because it is unusual, then for the fall at the end—for the final accident—you should also have obligated half damages and not exempted him entirely. That is the question. How does he manage with the Talmudic version? I’m not sure. In the Mishnah it says “he pays full damages like one that is habitual”; they even spell out the reason: “they pay full damages like those that are habitual from the outset.” And also in the baraita it says full damages. Maybe he had a different text; maybe according to his version it just says “liable”—I don’t know exactly. Anyway, that is the Ramah. The Nimukei Yosef says: “That is not so. For when we say ‘it begins with negligence’ and so on, we mean full negligence. But unusual behavior, which is not its normal way, is not full negligence.”
[Speaker E] What is he saying?
[Speaker G] That sounds like what the Rashba said.
[Rabbi Michael Abraham] Right, like the Rashba. The Nimukei Yosef rejects the Ramah based on the Rashba’s argument. And he says: if it begins like an innocuous horn case and ends with an accident, you are wrong to say that for the accident—for the fall—he is liable for half damages. He is exempt. Because it begins with negligence that is not complete—slight negligence.
[Speaker J] But he doesn’t need the extra level that the Rashba needed; he can say that it really is horn.
[Rabbi Michael Abraham] Right. That he does accept from the Nimukei Yosef—that’s not under discussion. From the Ramah—it’s not under discussion. If they jumped, they pay half damages; this is an innocuous horn case. His disagreement with the Ramah is only over what the law should be in the case of falling. If it is an innocuous horn case at the beginning, then in the case of falling is it also half damages, as the Ramah assumes? And the Nimukei Yosef says no, like the Rashba. So in effect you get three views here. The Rashba claims that jumping is full negligence; nevertheless, if it ends in an accident, he is exempt. If the jump had been an innocuous horn case and it ended in an accident, he would be exempt—that’s the Rashba. The Ramah claims the jump is an innocuous horn case, unlike the Rashba—he disagrees with the Rashba on that. And if it had begun like an innocuous horn case and ended in an accident, it should be half damages. Here too he disagrees with the Rashba. A case that begins like an innocuous horn case and ends with an accident is half damages. The Nimukei Yosef accepts the Ramah on one side and the Rashba on the other. Regarding a case that begins like an innocuous horn case and ends with an accident, the Nimukei Yosef is like the Rashba—that he is exempt. But on the question of how the case here is defined, here he is like the Ramah: here it is defined like an innocuous horn case, not like full negligence.
[Speaker D] Rabbi, the fact that he didn’t dispute him in the opening claim—maybe that means he accepts it; maybe he only raised his objection to the second part.
[Rabbi Michael Abraham] But if he doesn’t accept him in the opening claim, then none of these answers are needed; the question never gets off the ground. Why do you need answers to the question? After all, this is full negligence. Everything the Ramah asks is: since this is an innocuous horn case at the beginning, then for the accident too he shouldn’t be exempt—he should be liable for half. The Nimukei Yosef could answer him: what are you talking about? This isn’t an innocuous horn case at the beginning, so don’t confuse the issue. Okay. Now the Nimukei Yosef has a proof for this. “And if you do not say so, then in the case of foot-damage, where the Merciful One exempts with inferior guarding, how could that be found? Since with respect to horn it is not considered guarding, let it be a case that begins with negligence and ends with an accident, and he should be liable. Rather, learn from this as the Ramah explained.” Ah—sorry, no, I made a mistake. Meaning, that whole answer is all the Ramah. Only the proof at the end is the Nimukei Yosef. It’s not a dispute of the Nimukei Yosef with the Ramah. For some reason—I don’t know—I brought it here not exactly from the beginning. But no, there aren’t three views. What I read earlier as the Nimukei Yosef is the Ramah. Okay? The Ramah in the question, and the Ramah in the answer. Maybe there are three views, doesn’t matter, but not in that sense. What proof does the Nimukei Yosef actually bring for the Ramah? He says it must be that a case that begins like an innocuous horn case and ends with an accident is exempt. Why? Because we know the general rule—and we saw this at the beginning of the chapter—that for guarding against foot-damage, inferior guarding is enough to exempt you. For an innocuous horn case you need superior guarding, and we discussed that paradox and I explained it. Now let’s say I guarded with inferior guarding and foot-damage occurred. Half damage? Okay. Am I liable or exempt? Obviously exempt, right? Inferior guarding exempts from foot-damage. The Nimukei Yosef asks: why? After all, inferior guarding counts as negligence with respect to horn-damage. Because to be exempt from horn, you need superior guarding. And if you were negligent with respect to horn, and in the end foot-damage occurred, then you should be liable.
[Speaker E] Rather, this is proof that negligence with respect to innocuous horn damage—that is, giving inferior guarding rather than superior guarding—is not called “it begins with negligence.” And if it ended with an accident, I’m exempt. Apparently a very strong proof. What would he answer to that…
[Rabbi Michael Abraham] Actually, nobody really needs to answer that because it’s only an initial thought that was rejected. But if someone says that a case that begins like an innocuous horn case and ends with an accident is liable for half, is there then a difficulty from the exemption for foot-damage with inferior guarding? Not necessarily. Because it may be that when the Torah exempted foot-damage with inferior guarding, that is exactly what it was saying. After all, we learn from the Torah that inferior guarding suffices to exempt from foot-damage. Now if the law were that I am always liable because of “it begins with negligence and ends with an accident,” since I am negligent with respect to horn, then that law becomes a dead letter. What the Torah tells me—that inferior guarding is enough to exempt from foot-damage—becomes a dead letter; it would never exempt, never. Because I would always, always be liable, since it begins with negligence regarding horn. The very fact that the Torah exempts in the case of inferior guarding for foot-damage shows that I really am exempt, and we do not take into account the beginning-negligence of horn. Now, of course, the immortal question always comes up: can this verse teach me that very point—that a case which begins like theft or loss, yes, begins with negligence with respect to innocuous horn and ends with an accident, is exempt? That’s what this verse teaches. Because the verse does in fact exempt me, in the case of inferior guarding, from foot-damage. You can say no: the general law is otherwise. Therefore we need the verse that specifically in foot-damage I am nevertheless exempt. Because on the general plane, a case that begins like theft or loss would be liable. Okay? So those are two possibilities. Why am I saying this? It reminds me of Rabbi Akiva Eiger on the Rif. According to Rabbi Akiva Eiger, the Rif holds…
[Speaker E] …that if it begins with theft or loss and ends with an accident, he is liable. There is no distinction between beginning with negligence and beginning with theft or loss. So what will he do here? After all, all the answers that the medieval authorities give here…
[Rabbi Michael Abraham] …are that here we have a case that begins with inferior guarding, like what the Rashba says, say—or what the Ramah says, it doesn’t matter. But this is a case that begins with inferior guarding and ends with an accident, and he is exempt. Right? That’s what it says here. And both of them explain, each in his own style, that this is a case that begins in the mode of theft or loss. One says it about innocuous horn; one says it about negligence itself—just a kind of negligence that is not absolute. Okay? But still, both agree on the principle that if it begins with theft or loss and ends with an accident, he is exempt. But according to the Rif there is no such rule.
[Speaker E] The rule would be that he is liable. What will the Rif do with the passage here? So first: what will the Rif do with the proof that the Nimukei Yosef brings from the exemption for foot-damage? That’s first. And I said that’s not difficult, because there is an explicit Torah exemption for…
[Rabbi Michael Abraham] …foot-damage. He can say: that is exactly what was innovated there. But what will he do with the Talmudic passage? All the earlier questions of the medieval authorities come back—the factual questions, the legal questions, everything we asked until now comes back. What will the Rif do with this according to Rabbi Akiva Eiger? After all, here you have vessels close to the wall. Now let’s do the calculation: if we assume that this is full negligence, then if it ends in an accident he should be liable. So why in the case of falling is he exempt? What will you say, like the Rashba, that this is not full negligence? But the Rif does not accept such a thing as not-full negligence; any negligence for which you are liable is like full negligence. A case that begins with negligence and ends with an accident would be liable in such a case. There is no such option—not of the Nimukei Yosef and not of the Rashba. So what will you say—that this is like horn? It isn’t full negligence; it’s like horn. But even in a case that begins with horn it still wouldn’t work—he can’t be exempt in the case of falling, because why should he be exempt for falling? What will you say to me—that horn means it begins like theft or loss? But according to the Rif, even a case that begins like theft or loss is still liable.
[Speaker E] What will you say—that this is a complete accident? That can’t work at all. If it’s a complete accident, then why for the jump is he liable? Fine, then I understand why for the falling he is exempt—but explain to me why if they jumped he is liable.
[Rabbi Michael Abraham] In short, according to Rabbi Akiva Eiger’s reading, the Rif can’t get out of this in any way. There are two principal ways to explain the Rif. The Rif according to Rabbi Akiva Eiger. By the way, if I’m right about the Rif and not Rabbi Akiva Eiger, then there’s no problem at all. The Rif fully accepts in practical law that if it begins with theft or loss and ends with an accident, he is exempt. True, the proof according to Abaye is not a proof according to Rava—but here is proof from this passage that it is true even in practice. I said that Rabbi Akiva Eiger’s proof is only that there is no proof; he did not prove in the Rif that a case that begins with theft or loss and ends with an accident is liable. He only said there is no proof that it is exempt. Fine. Now from this passage there is proof.
[Speaker E] So two possibilities anyway for explaining the Rif according to Rabbi Akiva Eiger. One possibility is to say that when it begins like an innocuous horn case—that’s not even slight negligence. A case that begins like an innocuous horn case and ends with an accident is not like a case that begins with theft or loss.
[Rabbi Michael Abraham] This is a complete case of unavoidable accident, just as we thought at the beginning. So then what is written there—why, in the case of jumping, are they liable? That’s the law of an innocuous goring animal. You can ask why, but it says full damages; it doesn’t say half damages. In any case, that is also difficult for the Nimukei Yosef. And maybe there was a different textual version here—I don’t know. So the Rif would also join this thesis. It’s just that the Rif would argue, like the Nimukei Yosef, that if it begins as an innocuous goring animal and ends in an unavoidable accident, he would be exempt. Not because it’s like beginning with theft or loss and ending in an unavoidable accident, but because this is a complete unavoidable accident; it’s not theft or loss. It’s a complete unavoidable accident, because an innocuous goring animal is a complete unavoidable accident. It’s a fine, but it’s still a complete unavoidable accident. “Complete unavoidable accident” means it’s not like theft or loss—it’s more of an unavoidable accident than that. Okay? And therefore, if in the end there was a fall, I’m exempt. Why, if they jumped, am I liable—after all, that too is an unavoidable accident? That’s the novelty of an innocuous goring animal: even though it’s an unavoidable accident, they fined me to pay half damages—a penalty. Of course, according to this, it comes out that the payment here is half damages and not full damages. And it says full damages—which is also difficult for the Ramah and the Nimukei Yosef, so I don’t know if there was a different textual version here. So the Rif would join that as well.
By the way, it may soften the force of the difficulty a bit if we say that everything the Nimukei Yosef and all these medieval authorities (Rishonim) are saying applies in the Mishnah—no, in the baraita, sorry—because the baraita distinguishes between “they fell” and “they jumped.” In the Mishnah, what is written is only “they jumped, they are liable”—that’s what it says. It could be that there they would say liable for half damages; it doesn’t say that if they fell they are exempt. And therefore the interpretive setup that the vessels were placed close to the wall is an interpretive setup to explain the baraita, because in the baraita it says: if they jumped, they are liable; if they fell, they are exempt. In the Mishnah it says only that if they jumped they are liable; there it could be that the vessels are far away altogether. And then it could be that in the Mishnah what—close, and liable—means liable for half.
Now, in the baraita it says full damages. In any case, you have to alter some textual version here. But it doesn’t say “because they are forewarned.” In the Mishnah, the wording is that he pays full damages because they are forewarned. That already makes it really hard to explain this as an innocuous goring animal. Look, I’ll go back to the Mishnah and the baraita—take a look. Did you see the Mishnah? “He pays full damages because they are forewarned.” How can you fit half damages in here? In the baraita: “As it was also taught likewise: the dog and the goat that jumped from the top of the roof and broke the vessels pay full damages; if they fell, they are exempt.” You see, the distinction between “they fell” and “they jumped” appears in the baraita. In the Mishnah it is only an inference of the Talmud. But in the Mishnah it appears only that they jumped, and there he pays full damages. So this is not half damages; rather, these are distant vessels, and if they jumped, they pay full damages. And we’re talking about distant vessels. The question is: what about if they fell? What do you mean, what about if they fell? If they fell and the vessels are far away, nothing would happen to the vessels—what do you want? The Mishnah is talking about a dog and a goat that jumped onto distant vessels. Period.
What the Talmud infers—“the reason is that they jumped; but if they fell, they would be exempt”—that doesn’t even get off the ground, because if they fell, factually the damage just would not happen, since the vessels are far away; by falling they won’t be damaged. So what will you say to me—yes, but if they fell onto nearby vessels they’re exempt? Of course they’re exempt, because that is a case that begins with unavoidable accident and ends with unavoidable accident, and they are exempt. So the inference is perfectly fine. In the baraita, though—in the baraita we are dealing with that same picture, and it says that if they jumped they are liable and if they fell they are exempt. That is strange. So they make an interpretive move that the vessels are close to the wall and start maneuvering. In the baraita, the “jumped” and the “fell” could be about two different cases: they jumped onto distant vessels, which implies that if they fell onto nearby vessels they are exempt. Who said we’re talking about the same case, once with falling and once with jumping? There is no such case; factually there is no such case. With distant vessels, falling won’t cause damage; with nearby vessels, jumping won’t cause damage. Therefore, in the Mishnah you can leave the Rif and the Nimukei Yosef and all the others in their plain sense: we are dealing with outright negligence. In the baraita, where we are dealing with nearby vessels and nevertheless the baraita talks about jumping—that is odd. So there we are really talking about payment of half damages, not full damages. True, it says “he pays full damages”; that’s not perfect. You have to say it should read “he pays,” not “full damages.”
Especially since, if you notice—and this is already a matter for researchers, right?—but if you notice the wording, the wording of the baraita completely copies the Mishnah: “the dog and the goat that jumped from the top of the roof and broke the vessels pay full damages; if they fell, they are exempt.” So it copied the Mishnah, and therefore it simply continued the Mishnah’s wording as well. Really, originally it said only “he pays.” In the wording they said “he pays full damages” simply because they copied the language of the Mishnah due to the similarity. And that’s why it says here “full damages,” but really the intent is half damages. And therefore, if they fell, they are exempt, because this is a case that begins as an innocuous goring animal and ends in an unavoidable accident, which truly is exempt. What does the Mishnah say? “The dog and the goat that jumped pay full damages,” because we are talking about their jumping onto distant vessels. What the Talmud infers—“but if they fell, they are exempt”—refers to another case: they fell onto nearby vessels, that’s all. And when they fell onto nearby vessels they are exempt, of course, because there is no forewarned status with respect to falling, and therefore there is no problem at all.
[Speaker E] So that’s one possibility.
[Rabbi Michael Abraham] For explaining the Rif and the Nimukei Yosef—how they fit into our Talmudic passage. And again, this still requires some change in the text, but because of the similarity, it seems to me that one can understand it that way. But it could be—and I’m jumping a bit ahead, I’ll say it because the lecture is already over, so I’ll just say it telegraphically—it could be that the Rif will have to say that there is a difference, in the rule of “it begins with negligence and ends in an unavoidable accident,” between tort law and bailees. In the laws of bailees, if it begins with theft or loss and ends in an unavoidable accident, he really would be liable. But in tort law, if it begins with theft or loss and ends in an unavoidable accident, he would be exempt.
One possible explanation, for example, is that in tort law we explained the Rif through Rabbi Akiva Eiger—what is his disagreement with Tosafot? Because Tosafot understands, for example—one of the possibilities—that liabilities for theft or loss are liabilities of responsibility, and “it begins with theft or loss and ends in an unavoidable accident” is still a liability of responsibility, so it is not—an ongoing act. There is no exemption for unavoidable accident. The Rif argues that in the laws of bailees this is not a liability of responsibility, but rather a liability for the negligence of the bailee. And therefore even in theft or loss, he was negligent at the level of theft or loss, and therefore he is liable. But in tort law, it could be that even the Rif agrees that the liabilities—or at least liabilities akin to theft or loss—are only liabilities of responsibility. Then he would say that “it begins with theft or loss and ends in an unavoidable accident” is exempt only in tort law, for Tosafot’s reason. And Rabbi Akiva Eiger on the Rif would also agree with that. That is one possible resolution, and then the whole issue never arises. “It begins with theft or loss and ends in an unavoidable accident” would be exempt in tort law, even according to the Rif. It would be exempt only in tort law according to the Rif. And the Rif also agrees that in tort law this would be exempt.
[Speaker E] Okay? Of course, that depends on the question of how I understand liability for damage caused by one’s property.
[Rabbi Michael Abraham] You understand that if it is based on negligence in guarding, then it isn’t responsibility; it is liability for the act itself, just like in the laws of bailees. And if it is based on responsibility for my property that caused damage—that’s the expression, responsibility—then it is a liability of responsibility. So if I understand that it really is a liability of responsibility, then there is definitely real room to say that “it begins with theft or loss and ends in an unavoidable accident” would be exempt. The question is what happens if it begins with negligence. You would have to say that apparently negligence, even in tort law, is liability for the act and not for responsibility. That already requires a more complex theory. It’s not simply whether one becomes liable for negligence in guarding or for responsibility for the property that caused damage. It would depend on whether this is negligence or something akin to theft or loss. Okay, we’ll still get to all of this next time, so I’ll stop here.
[Speaker E] If anyone wants to comment or ask, you can. Okay, so goodbye everyone.