Kones Chapter – Lesson 23
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Summary of the previous chapters on bailees
- Transition to torts and the passage on page 21
- Is half-damages a fine or compensation?
- Tosafot on page 21: the factual difficulty and two answers
- Explaining the halakhic implications of Tosafot’s first answer
- Tosafot’s second answer: a long vessel and the distinction between the target of the negligence and the target of the accident
- Connecting to Rabbi Akiva Eger’s principle on the Rif and understanding the mechanism of liability
- The Meiri: vessels very close to the wall and a reading of “two cases”
- Rabbeinu Peretz, the student of Rabbeinu Peretz, and Rabbeinu Yeshaya (Tosafot Rid) in Shitah Mekubetzet
- A distinction between Tosafot and the two-vessel approaches, and a possible practical implication
- The need for a concrete threat in torts and the parallel to bailees
- The Rif and his omission of the details of the passage
- The Avi Ezri’s difficulty with Rabbi Akiva Eger in torts
- Guidance for further study
Summary
General Overview
The text summarizes the discussion of “it began with negligence and ended with an accident” in the laws of bailees and in torts, and presents the main disputes as revolving around whether a connection is needed between the negligence and the accident, and around the distinction between a case that began with negligence and one that began with theft or loss. It then turns to the passage on page 21 about a dog and a kid that fell or jumped from a roof and broke vessels, and examines factual and halakhic difficulties: how such a case is technically possible, what exactly creates liability in jumping, and what underlies the exemption in falling. Various explanations among the medieval authorities (Rishonim) are brought, especially in Tosafot and other approaches in Shitah Mekubetzet, and a principle is developed according to which the rule of “it began with negligence and ended with an accident” does not apply when the negligence threatened one vessel but the accident damaged another vessel or another part. Finally, comments are made about the Rif, who does not bring the details of the passage for practical Jewish law, and about the Avi Ezri’s question regarding the application of Rabbi Akiva Eger’s reasoning in torts as opposed to bailees, along with guidance to study the passages on 56 and 52.
Summary of the Previous Chapters on Bailees
The discussion begins with “it began with negligence and ended with an accident” in the laws of bailees, where the practical halakhic conclusion is that one is liable. The liability is understood as a negative connection rather than a positive one, and according to most views a connection is required between the negligence and the accident, aside from the Rif in his understanding of Abaye, together with commentators there on the Rif. It was established that “it began with theft or loss and ended with an accident” is, according to most views, exempt; Rabbi Akiva Eger, in explaining the Rif, argues that one is liable, but it is claimed that this is not forced in the Rif, because he may agree with Tosafot in their understanding of Rava and still exempt even without proof from the passage on page 93.
Transition to Torts and the Passage on Page 21
In the previous lecture, the discussion moved to “it began with negligence and ended with an accident” in torts, based on the passage on page 21, where it says that a dog and a kid that jumped from the top of a roof are liable, but if they fell they are exempt. The Talmud explains the distinction in terms of vessels that are far away versus vessels that are close by, and two central questions arise: first, how is it technically possible for vessels to be broken both by jumping and by falling; and second, how can the exemption in the case of falling fit with the rule that “it began with negligence and ended with an accident” creates liability. Rashba raises a further question: even in the case of jumping, why should there be full damages rather than half-damages, since jumping onto nearby vessels is unusual behavior. It is also discussed that even if the liability is only half-damages, one must still clarify the law of “it began with tam-horn liability and ended with an accident” — whether one is exempt or liable for half.
Is Half-Damages a Fine or Compensation?
It is explained that the question whether to impose half-damages when it ends in an accident, or to exempt entirely, depends on whether “half-damages” is considered a fine or compensation. If half-damages is a fine, then the beginning of the liability is not really negligence but a penalty imposed even though the animal is, in principle, presumed guarded; that yields a case of “it began with an accident and ended with an accident,” leading to complete exemption. But if half-damages is compensation, then the beginning is negligence that the law was lenient about, and therefore one pays only half; in that case one could say that even when it ends in an accident there is liability, but only half and not full damages.
Tosafot on Page 21: The Factual Difficulty and Two Answers
Tosafot raises a factual difficulty: if the vessels are close to the wall, how are they broken by jumping? And if they are far away, how are they broken by falling? In the first answer, Tosafot explains the case as one involving vessels that are neither far nor close, such that they can be broken both by falling and by jumping. In the second answer, Tosafot explains the case as involving “a long vessel,” which is broken in falling on the side near the wall and broken in jumping on the side farther away.
Explaining the Halakhic Implications of Tosafot’s First Answer
In the first answer, it is explained that the fall itself is the accident, not the fact that the vessels break in the fall, so it is still a case of “it began with negligence and ended with an accident.” It is argued that the chance of breakage through jumping at that middle distance is smaller, so the initial fault with respect to jumping may be only at the level of theft-and-loss liability rather than full negligence; that would produce an exemption under the category of “it began with theft or loss and ended with an accident.” Another possible explanation is suggested, namely that the jump is unusual and thus falls under tam-horn liability, but this is said to be difficult because the language of the Talmud implies full damages and not half; therefore one should not infer from Tosafot a definite position on “it began with tam-horn liability and ended with an accident.”
Tosafot’s Second Answer: A Long Vessel and the Distinction Between the Target of the Negligence and the Target of the Accident
In the second answer a bigger difficulty emerges, because when the far side of the vessel is likely to be broken by jumping, that is full negligence and full damages, so it is not clear why falling should be exempt. A principle is suggested according to which we do not say “it began with negligence and ended with an accident” when the negligence endangered one thing and the accident damaged another thing. In Tosafot, the law of a long vessel is thus interpreted as analogous to the law of two vessels. It is said that Tosafot treats this as obvious in the case of two vessels, and therefore a novelty is needed specifically in the case of one long vessel, where one might have thought it counts as the same vessel for purposes of “it began with negligence and ended with an accident.”
Connecting to Rabbi Akiva Eger’s Principle on the Rif and Understanding the Mechanism of Liability
Rabbi Akiva Eger’s explanation of the Rif’s view of Abaye is presented: the negligence itself creates liability, and the accident merely prevents actual return, so the liability arises at the moment of negligence even without a connection between the negligence and the accident. It is argued that this principle explains well why, when the negligence threatens vessel A and the accident damages vessel B, there is no liability for vessel B, because the liability is created only with respect to the object that entered the framework of the negligence. It is also suggested that even according to Tosafot, who requires a connection between negligence and accident, one can understand the liability as a “continuing act of negligence” that is completed by the accident only when both are attributed to the same object.
The Meiri: Vessels Very Close to the Wall and a Reading of “Two Cases”
The Meiri explains that when the vessels are very close to the wall, there is no way for the jumper to land on them except by jumping beyond them, and therefore if the animals fell on them and broke them they are exempt because it is “beginning and end in accident.” The Meiri writes that if they jumped onto such vessels there is no half-damages liability, because there is no intention to damage, and he brings “those who disagree,” who obligate half-damages, and says, “that does not seem correct to me.” From the Meiri, an approach is constructed according to which the Talmud is really speaking about two different situations: the jump that creates liability involves distant vessels, while the fall that creates exemption involves nearby vessels. On that reading, the passage is not necessarily dealing with “it began with negligence and ended with an accident” in one and the same case.
Rabbeinu Peretz, the Student of Rabbeinu Peretz, and Rabbeinu Yeshaya (Tosafot Rid) in Shitah Mekubetzet
Rabbeinu Peretz explicitly explains “it teaches by sides,” meaning: if they jumped and broke vessels that were far away, one pays full damages; if they fell and broke vessels that were close by, one is exempt. The student of Rabbeinu Peretz explains a case of two vessels, so that the expression “outward” is interpreted as “farther out than the first vessels that are broken by falling.” Rabbeinu Yeshaya writes that even if with respect to the distant vessels he is negligent, with respect to the nearby ones this is not called “it began with negligence,” because as to them there was no negligence. That explicitly anchors the principle that there is no “beginning with negligence” regarding an object that was never under the risk created by the negligence.
A Distinction Between Tosafot and the Two-Vessel Approaches, and a Possible Practical Implication
It is suggested that according to Tosafot, in the answer involving the long vessel, the exemption in the case of two separate vessels seems obvious and therefore requires no special novelty in the Talmud; whereas according to the approaches that set up the case as involving two vessels, perhaps this is not obvious, and the Talmud is teaching that one cannot extend the negligence toward a distant vessel into liability for a nearby vessel that was broken through an accident. It is suggested that their reading in terms of two vessels may imply that in their view the law of one long vessel is different, and liability may exist when it is the same vessel — though it is also possible that they simply did not address the long-vessel case.
The Need for a Concrete Threat in Torts and the Parallel to Bailees
It is suggested that in the passage about the dog and the kid, a concrete object under threat is required in order to activate the rule of “it began with negligence and ended with an accident,” and a merely hypothetical possibility — that the owner of the courtyard might later place vessels at a distance — is not enough. The reason proposed is that the model of liability treats the object as already considered broken from the moment of the negligence, or as part of a continuing damaging act; therefore without an actually threatened object there is nothing to which the beginning of the act can be attributed. At the same time, it is argued that if after placing the dog and the kid on the roof someone then put distant vessels there, and they jumped and broke them, one could still impose liability for the damage caused by the jump even if there was not yet a concrete threatened object at the time they were placed there; what one cannot do is impose liability for an ending in accident that is unrelated to the object that was threatened.
The Rif and His Omission of the Details of the Passage
It is noted that the Rif on page 21b does not bring the distinctions between nearby and distant vessels, and does not detail the discussion of falling and jumping, but only quotes the language of the Mishnah. One possibility suggested is that according to Rabbi Akiva Eger, the Rif understood the passage as depending on Abaye’s view and on the rule of “it began with theft or loss and ended with an accident,” and therefore did not bring it as practical Jewish law when ruling like Rava, who in his view would impose liability; once that is so, the details of the interpretive setups are unnecessary. A more general possibility is also suggested: one could distinguish between bailees and torts, so that the rule of “it began with theft or loss” in torts would remain exempt even if in bailees it is liable. It is said that later there will be an explicit approach among the medieval authorities in this direction in Raavad.
The Avi Ezri’s Difficulty with Rabbi Akiva Eger in Torts
The Avi Ezri objects to Rabbi Akiva Eger that his explanation fits bailees, where the damaged object is defined in advance, but in torts, at the time of the negligence, there is no defined damaged object, since the damaging animal will later damage whomever it encounters. A possible answer is suggested: even in torts, one can say that after the damage occurs, the damaging act is retroactively attributed to the initial negligence. Still, the distinction remains that our passage emphasizes concrete threatened vessels. This is linked to the broader inquiry whether tort liabilities are liabilities for negligence and a damaging act, or rather a liability of responsibility for one’s damaging property. It is said that this inquiry may have implications for the law of “it began with negligence and ended with an accident.”
Guidance for Further Study
The instruction is given to return to the passage on 56a and examine “it began with negligence and ended with an accident” in light of the need for a connection between negligence and accident, and in light of the law of “it began with theft or loss.” There is also a reference to the passage on page 52 regarding covering a pit and the falling of camels and oxen, in order to reach further conclusions on the issue in torts.
Full Transcript
[Rabbi Michael Abraham] First of all, a summary of the previous chapters. We dealt with “it began with negligence and ended with an accident” in the laws of bailees. We saw that — maybe turn on just the cameras, unless there’s some special reason not to. So, as practical Jewish law, if it began with negligence and ended with an accident, one is liable. We talked about the fact that this is a negative connection, not a positive connection. We saw that according to most opinions there has to be a connection between the negligence and the accident, aside from the Rif in his reading of Abaye, and there are commentators there on the Rif. We saw that if it began with theft or loss and ended with an accident, according to most opinions one is exempt. Rabbi Akiva Eger, in explaining the Rif, claims that one is liable, and I argued that this is not necessary in the Rif, because according to the Rif there may be no proof from the passage on page 93 that one is exempt — but that doesn’t mean he isn’t exempt even without that proof. In other words, simply because the Rif’s reasoning may be like Tosafot’s in their reading of Rava, where one is exempt, so too according to the Rif it could be that he joins Tosafot in their reading of Rava and would also exempt. That was up to the lecture before last. In the previous lecture we moved to “it began with negligence and ended with an accident” in torts. And there we started the passage on page 21. And the Talmud there says that if a dog and a kid jumped from the top of a roof, there’s a difference between jumping and falling: if they fell, they are exempt, and if they jumped, they are liable. And the discussion there is what happens — apparently this is a case of “it began with negligence and ended with an accident,” so if there was negligence regarding the possibility that they might jump and break vessels, then really one should also be liable for the fall. But the Talmud says that it depends on whether these are distant vessels or nearby vessels. And the medieval authorities (Rishonim) begin discussing what exactly the Talmud’s case is even talking about. Because if we’re talking about nearby vessels, then they aren’t really in danger from jumping at all. So one should either be exempt even for the jump, or liable only for half-damages as tam-horn liability. And as for the fall, once again that depends on the question whether “it began with negligence and ended with an accident” creates liability. If the vessels are far away, then for the jump they are liable, but then regarding the fall — first, apparently one should be liable, because that’s “it began with negligence and ended with an accident”; and second, factually it’s not even clear how a fall breaks distant vessels, because when they fall, the dog and kid fall close by, close to the wall. So there are basically, as I said, two kinds of questions here that need clarification. First, the factual question — meaning, if the vessels were close, how were they broken by jumping? If they were far, how were they broken by falling? How did that technically happen? Second, even if it happened, there’s the halakhic question: what’s going on here with the rule of “it began with negligence and ended with an accident”? If one is liable for jumping, then apparently one should also be liable for falling, because it began with negligence regarding the jump and ended with an accident regarding the fall. And there’s a third halakhic question that Rashba raises: even regarding the jump, even if we say they’re liable, why should they be liable for full damages? They should be liable only for half-damages, because on nearby vessels, jumping is unusual behavior. So it’s unusual, and it should therefore be half-damages. And we talked about the fact that even if I decide that yes, it really is only half-damages — and we saw approaches among the medieval authorities that in fact say this as practical Jewish law, that one is liable for half-damages — there is still room to discuss what happens with the fall. Because “it began with tam-horn liability and ended with an accident” raises the question whether one is liable or exempt. What’s the question — or what do I mean? It’s actually a three-way question: liable, exempt, or liable for half. As for full liability, that doesn’t really make sense. Because if the beginning involved only liability for half-damages, there’s no reason the ending in accident should generate full damages. So the discussion is only whether, for the ending in accident, one should also impose half-damages, or whether for the ending in accident one exempts. I said that, apparently, this depends on the question whether half-damages is a fine or compensation. Because if it’s a fine, that basically means that the beginning wasn’t negligence either — it’s just a penalty they imposed on him. In principle, oxen are presumed guarded, so really he ought to be completely exempt, and they fined him with half-damages. So that’s really a case of “it began with an accident and ended with an accident,” and he should be completely exempt. On the other hand, if I say that half-damages is compensation, then the claim is that this really is negligence; they were lenient with him, so he pays only half-damages, but it is negligence. And if it is negligence, then apparently even for the ending in accident he should be liable — except that he would be liable only for half and not for full, because even for the negligent ending — even for the negligence itself — he incurs only half-damages. So it doesn’t make sense that for the accident that comes at the end he would incur full damages. And we saw different approaches among the medieval authorities on all these questions. There is a dispute over whether jumping onto nearby vessels is tam-horn liability or a complete accident. There is discussion whether, even assuming it is tam-horn liability, if it ends in an accident one is exempt or liable for half-damages. Okay, so we saw different approaches on that issue. Okay, now I want to move to Tosafot’s approach, which we haven’t yet seen. We’ll see there a few more early authorities on this topic that will sharpen the picture a bit more for us. So I’m starting with Tosafot there in the passage on page 21. “If they fell, they are exempt.” Tosafot says: “This shows that he holds,” and so on — yes, that “it began with negligence and ended with an accident” is exempt. “And if you say: what exactly is the case? If the vessels are close to the wall, how are they broken by jumping? But we say below that when they jump, they jump outward. And if the vessels are far away, how are they broken by falling?” Tosafot is clearly asking the factual question, not the halakhic one. It’s simply: how can the very same vessels be broken both by falling and by jumping? If they’re close, then they break in a fall but not in a jump. If they’re far, then they break in a jump but not in a fall. There is no setup in which the vessels can be placed so that they can be broken both by jumping and by falling. But the baraita and the Mishnah speak both about a jump that broke them and about a fall that broke them — where for the jump one is liable and for the fall one is exempt. So it seems we have a case of vessels that can be broken both by falling and by jumping — and how can that be? Tosafot gives two answers here. First answer: “And one can say that the vessels were neither far away nor close, so that they could be broken both by falling and by jumping.” What does that mean? The vessels were placed at some middle distance — not very close to the wall and not very far from the wall. And at that particular distance it is possible for them to be broken both by falling and by jumping. In other words, the very close ones are broken only by falling and not by jumping. The far ones are broken only by jumping and not by falling. The ones in the middle can sometimes be broken both by falling and by jumping, because after all, jumps can vary in range, and falls also aren’t always in exactly the same place. So it’s positioned in such a place that it can break either through falling or through jumping. Fine. That answers the factual difficulty: how can there be a situation in which vessels are placed in a certain spot and can be broken both by jumping and by falling? Factually — how can that happen? But of course all the halakhic questions remain as they were. First: why, for the jump, does one not have to pay only half-damages? That seems pretty obvious, right? Because this isn’t unusual and it isn’t horn liability — from the outset it can break, or it is in danger of breaking, through a jump. So if it breaks through a jump, that’s expected; it’s not unusual. And therefore he pays full damages, not half-damages, and Rashba’s question falls away. But if that’s so, then it’s not clear why in the case of falling he is exempt. After all, as practical Jewish law, “it began with negligence and ended with an accident” creates liability, so how can he be exempt? One might even have said — yes, a question: who says this is even a case of “it began with negligence and ended with an accident”? Apparently this is all negligence, because these are vessels that can be broken both by jumping and by falling. So really they are set up to be breakable both in a jump and in a fall. So this is not “it began with negligence” regarding jumping and “ended with an accident” regarding falling — the fall, too, was meant to break it. So it’s really all negligence. It has nothing to do with the opinions that say “it began with negligence and ended with an accident” is liable or exempt — this is all negligence. Of course, that’s not correct. Why not? Because the accident in the breakage through the fall is not because a fall is not supposed to break the vessels, but because a fall is not supposed to happen. Usually a kid and a dog don’t fall from a roof. The fall is the accident — not the fact that the fall broke the vessels. If they fall, then yes, the vessels were meant to break. But the very fact that they fell is what is called an accident. So when I placed them on the roof, I was negligent at the outset because they could jump and cause damage. Jumping is something I should have anticipated, and that also could have broken the vessels. And the fall is an accident — not because if they fall the vessels weren’t supposed to break, because after all they are in a place where even a fall can break them, but because the fall itself is the accident. The fall wasn’t supposed to happen. So what remains here is only the halakhic question: why, in the case of falling, is he exempt? After all, this is “it began with negligence and ended with an accident.” It seems there’s really no choice but to go with Tosafot, once again, along the same line that we saw in other early authorities regarding “it began with theft or loss.” What do I mean? The claim is basically that once you place the vessel in a spot where it can be broken by jumping and can be broken by falling, clearly the chance of it breaking in a jump is smaller than with an ordinary vessel placed in the normal jumping range — in the center of the jump range for kids and dogs. This vessel is at the edge of the jumping range and at the edge of the falling range, so that both could happen to it. Could happen. But also might not. The chance that it will break through a jump is small. Not absurd — but small. So what follows? Basically, in that situation, it’s true that if they jumped you are liable — but you are liable only at the level of theft or loss, not at the level of full negligence. And therefore, if it ends in a fall, you will be exempt. If it happened through a jump, you will be liable, because for theft or loss you are also liable. But if it ends in a fall, then it is “it began with theft or loss and ended with an accident,” and there one is exempt. Of course, one could have said this in two formulations, in light of what we saw in the previous lecture. One could have said that if they break through a jump, then that’s unusual behavior. And Tosafot says: if it’s really very close to the wall, then it’s not merely unusual — it simply cannot happen, it’s a complete accident. That’s why he sets it up factually at some middle range, so that it can happen at all. But even in that middle range, it still isn’t really supposed to break through a jump. And if they nevertheless jumped and broke it, then that’s unusual. So you wouldn’t be exempt — it’s not a complete accident — but you would be liable for half-damages, like tam-horn liability. And therefore if it ends in a fall, then this is “it began with tam-horn liability and ended with a fall,” where you are exempt. That is one possible way to explain Tosafot, and of course it assumes that “it began with tam-horn liability and ended with an accident” is exempt. And on that I already commented that it’s difficult, because in the passage itself it says that for the jump one pays full damages, not half-damages. So that means it’s not tam-horn liability. We said that in Nimukei Yosef and in Ramah and among the authorities who go in that direction, there was apparently some different version in the Talmud, and I spoke about that last time. A more plausible possibility in Tosafot — since he doesn’t mention any of this — is that for the jump one really does pay full damages; this is not tam-horn liability. It is foot liability. And it can break through jumping, and that does not rise to the level of horn. It breaks on the level of foot liability, and you pay full damages. So why, when it ends in an accident, is he exempt? Because the expectation that it could break through ordinary foot-type behavior is relatively weak. In other words, it’s not completely outside the range, but it’s only at the level of theft or loss, and therefore if it ends in the accident of falling, he is exempt. Why didn’t Tosafot explain the beginning as tam-horn liability? That’s obvious — because it would be forced in the wording of the Talmud, and in the wording of the Talmud it says that for the jump one pays full damages. And the other medieval authorities need to press the text in order to say that one pays half-damages. So you cannot infer from Tosafot what he thinks about “it began with tam-horn liability and ended with an accident.” It may be that “it began with tam-horn liability and ended with an accident” is also exempt, or it may be liable; the reason Tosafot doesn’t explain it that way here is only linguistic. In the Talmud itself it seems that one is liable for full damages and not for half-damages, so there is no point in setting it up as half-damages, even though theoretically maybe that also could have explained the same thing. You can’t infer that Tosafot is taking any position here on “it began with tam-horn liability and ended with an accident.” Okay. What happens if the vessels are really close to the wall? According to Tosafot, he sets it up as middle-distance closeness. What if they are really close to the wall? On the face of it, from Tosafot’s wording it sounds like they simply cannot be broken by jumping. It just doesn’t happen. And therefore if, nevertheless, the dog and the kid made some jump very close to the wall for some reason, you would apparently be exempt. Because it can’t happen — in relation to that, it is considered guarded. Another possibility is to say that in such a case one would in fact be liable for half-damages, because it is tam-horn liability. What would happen in the case of falling in that setup? That depends on the dispute whether “it began with tam-horn liability and ended with an accident” incurs half-damages or is exempt. And I said that from Tosafot you can’t infer anything on that issue. That’s regarding vessels adjacent to the wall. If the vessels are at a genuinely far distance from the wall, then for a jump he is liable for full damages, because that is foot liability. What happens in the case of falling? In the case of falling, they simply cannot be broken, because the animals cannot fall that far. And if they did fall that far, then clearly it would be “it began with negligence and ended with an accident,” and therefore he would be liable, because the initial negligence is full negligence, not negligence at the level of theft or loss. So that seems to be Tosafot’s approach in the first answer. Tosafot gives a second answer: “Alternatively, it is talking about a long vessel, such that if they fall on the side near the wall it breaks, and if they jump it breaks on the far side.” Tosafot says we are talking here about a long vessel that stretches from the distance at which it can be broken by falling to the distance at which it can be broken by jumping. And in practice this vessel is exposed — or potentially exposed — to two dangers. If the dog and the kid jump, they will break its far side. If they fall, they will break its near side. So Tosafot’s alternative is not a middle distance — maybe there is no such middle distance — but rather a long vessel, and the long vessel extends from the jumping zone to the falling zone. What have we gained here? I mean, how are we now supposed to explain the laws? Let’s say that if they jumped, then I’m liable for full damages. Why? Because clearly it is expected to break — the far side is fully expected to break, and that is exactly what happened. So full damages are obvious. What happens in the case of falling? The Talmud says he is exempt. Tosafot has to explain to me why he is exempt. Why is he exempt? So true, the fall itself is the accident. The fact that if they fall they break the near side — that is not my problem. That part doesn’t bother me. Why not? Because it doesn’t remove it from the category of accident, since the very fact that they fell is the accident, not the fact that, given that they fell, they broke the near side. The fall itself is the accident. But my question is the halakhic one. Even if we define the fall as an accident, we still have a case that began with negligence regarding the jump — and in fact there is full damages there — and ended with an accident regarding the fall; and as practical Jewish law, “it began with negligence and ended with an accident” creates liability. So how can Tosafot explain here that he is exempt? And here, notice, we no longer have the option of saying “it began with theft or loss,” because regarding the damage — this is the Talmud’s own difficulty — you are liable for full damages, so it is full negligence. This is not theft or loss, nothing of the sort. Unlike the previous answer, where the vessel is at a middle distance, and one can say that the chance of the vessel breaking through a jump at that distance is smaller, and therefore the negligence with respect to a jump is only negligence at the level of theft or loss, so that if in the end it concludes with the accident of a fall, one is exempt. But in the case of a long vessel, the far side is entirely likely to be broken, so this is a case that began with full negligence, not with theft or loss. So why, according to Tosafot, in the end when it ends in an accident is he exempt?
[Speaker B] Isn’t that the Talmud’s own question? That’s what the Talmud asks.
[Rabbi Michael Abraham] Wait, maybe on my end the volume is lowered — one second. Ah yes, on my end it’s lowered. Yes?
[Speaker B] That’s the Talmud’s question. That’s exactly what the Talmud asks: if you say that “it began with negligence and ended with an accident” is liable, then why, when they fall, is he exempt?
[Rabbi Michael Abraham] No, I’m asking according to the Talmud’s conclusion. The Talmud says that the vessels were close — that’s its answer, right? Yes. So now I’m asking: fine, if they were close, then all these halakhic and factual questions come up. So how are they broken both by jumping and by falling? And if they are broken, then why is this not “it began with negligence and ended with an accident”? I’m asking according to the Talmud’s conclusion. According to the Talmud’s conclusion, we’re talking about a long vessel according to Tosafot’s second answer. So what does that help now? How can there be exemption for the fall? After all, this is “it began with negligence and ended with an accident.”
[Speaker C] What do you all say?
[Speaker B] I actually understood that Tosafot is talking about the Talmud’s initial assumption. Both of his answers are addressing the initial assumption; according to the conclusion, obviously we’re talking about vessels very close to the wall.
[Rabbi Michael Abraham] If they’re close to the wall, then all the questions begin — what did Tosafot ask? Look. “If you say: what exactly is the case? If the vessels are close to the wall, how are they broken by jumping?” So now…
[Speaker B] So Tosafot is going according to the conclusion, like that. Okay.
[Rabbi Michael Abraham] On the contrary — one could say he’s asking on the initial assumption too, but it is certainly difficult on the conclusion as well. At the moment I’m inclined to think he is asking only on the conclusion. Why? Because in the initial assumption this whole business of nearby versus far vessels had not yet even come up. They still didn’t know there was a difference between the range of jumping and the range of falling. That distinction is introduced only in the Talmud’s conclusion, and after that distinction is introduced, Tosafot starts doing the analysis of what exactly the case is. Notice the “and so on” in Tosafot’s opening phrase — you see the “and so on”? Yes, yes. And that “and so on” probably extends through to the conclusion. And we know that whenever there’s an “and so on,” then—
[Speaker B] The discussion—
[Rabbi Michael Abraham] —is about what’s included in the “and so on,” not about what is explicitly quoted, usually.
[Speaker B] That’s generally the rule.
[Rabbi Michael Abraham] Anyway — so how do we explain the exemption in the case of falling? After all, this began with full negligence, not with theft or loss. Here we no longer have the option we had in the first answer, that it began with theft or loss. So how can there still be an exemption? Apparently Tosafot understands — let’s think for a moment about a case with two vessels, one in the far range and one in the near range. So the beginning with negligence applies to the far vessel, because the kid and the dog were expected to jump and could break the far vessel. The ending in accident is that they fell and broke the near vessel. Okay? So what happens in that kind of case? If they jumped and broke the far vessel, then clearly they are liable. The question is why, if they fell and broke the near vessel, they are exempt. We’ll see later that there are early authorities who explicitly explain it as a case of two vessels, but for the moment I’m just analyzing that possibility, and then we’ll come back to the long vessel. So why really, when they fall and break the near vessel, are they exempt? The claim is that the negligence was with respect to the far vessel, while the accident happened with respect to the near vessel. And this is the novelty Tosafot is introducing here: if the negligence did not endanger the same vessel that was ultimately damaged by the accident, then we do not have the rule of “it began with negligence and ended with an accident.” That’s what we have to say in Tosafot, otherwise you can’t explain him. But Tosafot sets it up as—
[Speaker C] A long vessel, not two vessels. Do you have an idea why? Maybe it really is two vessels?
[Rabbi Michael Abraham] It seems to me that what Tosafot is assuming here is that if we were talking about two vessels, then obviously this would not be a case of “it begins with negligence and ends with an unavoidable accident.” It’s obvious that he would be exempt for the closer vessel. With one long vessel, you’re putting that very same vessel at risk, just different parts of it—the far part or the near part. Here there was room to think that this is a case of “it begins with negligence and ends with an unavoidable accident” with respect to the same vessel. Why should I care that these are different parts of the vessel? And here he would be liable. The Talmud, according to Tosafot, teaches us that even in such a case it’s like a case of two vessels. Meaning, what comes out according to Tosafot is that if this were talking about two vessels, then it would be obvious that he is exempt for the closer vessel if it broke in the fall. Because it is obvious that with two vessels we do not say: it begins with negligence regarding vessel A and ends with an unavoidable accident regarding vessel B. That was obvious to Tosafot; the Talmud doesn’t even need to teach that. Apparently there is no explicit source for this in the Talmudic texts, but to Tosafot it is obvious on logical grounds. Therefore Tosafot says we have to say that the Talmud is speaking about a long vessel. Why? Because even there the law is that you are exempt for the fall, but there there is a novelty, so there is a reason to bring it. There was room to think that there you would be liable, since through negligence and unavoidable accident you are endangering that very same vessel, and the Talmud teaches us that this is like a case of two vessels. So it turns out that in Tosafot there are really two novelties. One novelty is that in a case of two vessels, when you endanger vessel A through negligence and the unavoidable accident happens to vessel B, you are exempt. That is not a novelty for the Talmud—it is simple logic for Tosafot—but I’m saying it is still a novelty… this novelty comes out of Tosafot even though in his eyes it is simple logic. The second novelty—which is also not simple in Tosafot’s eyes, but is still correct—is that one long vessel has the same law as two vessels. That is really the novelty of the Talmud here.
Now we can begin asking ourselves how to explain this principle. Why, if we talk for now about two vessels—why if it begins with negligence regarding… why if it begins with negligence regarding vessel A and ends with an unavoidable accident regarding vessel B, is he really exempt even according to the one who says that if it begins with negligence and ends with an unavoidable accident, he is liable? Why should that be? I remind you of Rabbi Akiva Eiger’s explanation of the Rif in damages. What did he say? According to the Rif, who does not require a connection between the negligence and the unavoidable accident, why is he liable? Because the negligence itself creates liability. The moment you were negligent, as far as I’m concerned that vessel is stolen, broken—in other words, you already have to pay for it. You only need the unavoidable accident so that you cannot simply take that vessel and use it as payment, but not because the unavoidable accident is actually relevant to the liability itself. Your liability arose the moment of the negligence. Okay? If we understood it that way, then Tosafot’s principle is obvious. Right? Because if you were negligent regarding the far vessel and the eventual unavoidable accident happened to the near vessel, then what are you telling me? That the negligence itself basically turns the far vessel into a broken vessel. Therefore I am liable for the negligence itself regardless of the unavoidable accident that happened later. Excellent. So I owe you for the far vessel. Fine—I take the far vessel and return it to you. That is my payment. After all, in the end it wasn’t broken. As for the near vessel, I’m not liable—that was an unavoidable accident. What do you want from me? According to Rabbi Akiva Eiger’s principle, you don’t become liable for the unavoidable accident that happened at the end; you become liable for the negligence that was at the beginning. True, in the end the negligence did not bring about the problematic result, but it is enough that you committed the negligence in order to obligate you. According to that principle, Tosafot’s conclusion follows on its own. It is obvious.
Because if we understand that the liability in a case of “it begins with negligence and ends with an unavoidable accident” is that the negligence turns the vessel into a broken vessel, then obviously if the negligence was regarding vessel A and the unavoidable accident happened to vessel B—who ended up broken? Vessel B. Vessel A remains here; it is still here. After all, in the end the dog and the goat fell; they did not jump. The negligence was that they could have jumped. So the very fact that I placed them on the roof turned the far vessel A into a broken vessel. Now they fell and broke vessel B. So what do you want to obligate me for? You want to obligate me for vessel A. Vessel A is considered broken the moment I was negligent. Fine—here, I take vessel A and pay you my debt. Here is vessel A back in your possession. For vessel B you cannot obligate me, because vessel B was an unavoidable accident, and regarding it I was not negligent at all. So what are you trying to obligate me for with respect to vessel B? According to Rabbi Akiva Eiger, this is simple.
But there’s a catch. All of that was said according to Abaye, but in Jewish law, even the Rif agrees that there has to be a connection between the negligence and the unavoidable accident. And according to Tosafot, not only in practical Jewish law, but even according to Abaye there must be a connection between the negligence and the unavoidable accident. So this whole nice idea can be said in the Rif according to Abaye, following Rabbi Akiva Eiger. But we are talking here about practical Jewish law. And the question is how to explain this in practical Jewish law.
My claim is that if we take Tosafot—and I suggested this explanation of Tosafot in the previous lecture—if we take Tosafot in a way similar to Rabbi Akiva Eiger, then what we are really saying is this: even according to Tosafot, who requires a connection between the negligence and the unavoidable accident, and also according to the Rif in Rava’s view—I said that maybe the Rif in Rava’s view is like Tosafot—so we do require a connection between the negligence and the unavoidable accident. What is the basis of the liability? It still may be that in the final analysis you treat this action as a continuous act of breaking that began with negligence and ends with an unavoidable accident. And that happens only when there is a connection between the negligence and the unavoidable accident. So then why, in a case that begins with theft or loss and ends with an unavoidable accident, is he exempt, contrary to what Rabbi Akiva Eiger says? Because a beginning involving theft or loss is not called an act of breaking, as I said earlier. And for the unavoidable accident at the end I cannot be liable, because nothing was done—it was an unavoidable accident. I discussed this in the lecture, in the lectures about bailees even before the last lecture. I’m saying the same thing here.
Tosafot can say: fundamentally, even if there is a connection between the negligence and the unavoidable accident, you are liable for the negligence. It is only that the negligence causes us to obligate you for the unavoidable accident that happened later, because the unavoidable accident that happened later is considered the completion of your negligent act. Therefore, in the end we have here a continuous negligent act, and that is what he is liable for. And if this is really the conception in Tosafot when there is a connection between the negligence and the unavoidable accident, then we are still obligating for the negligence. Even though Tosafot requires a connection between the negligence and the unavoidable accident, the underlying idea is similar to Rabbi Akiva Eiger on the Rif. We still obligate—obligate for the negligence. It’s just that according to Tosafot there must be a connection between the negligence and the unavoidable accident, and in the Rif’s view according to Rav as well.
So what follows? If the negligence was regarding the far vessel A, and the unavoidable accident was regarding the near vessel B, then you can say that there was a continuous negligent act regarding vessel A, because with respect to it I was negligent. But the one that was broken is vessel B. So how can you obligate me for vessel B? If you want to obligate me for vessel A, I take vessel A and return you that very vessel. As for vessel B, you cannot obligate me, because in the final analysis, even according to Tosafot, you obligate me for the negligence. The distinction Tosafot makes here is apparently proof for one of the two understandings that I mentioned in the lectures on bailees. And I said there too that even according to Tosafot, it may be that the understanding is that one becomes liable for the negligence and not for the unavoidable accident, except that the unavoidable accident that happened at the end is considered a continuation of the negligence that occurred at the beginning, and now I treat it as though the negligence I committed at the beginning is what brought about the breaking that happened at the end. That is the law of “it begins with negligence and ends with an unavoidable accident.” But all of that is only if the negligence and the unavoidable accident are about the same vessel.
You can tell me that from beginning to end I performed one continuous act of breaking on the far vessel. But if you are talking about the far vessel—the far vessel in the end did not break. You want to say that my negligence is considered as if it broke it—fine, health and happiness, you can say that. So I owe you for the far vessel, excellent. I take the far vessel and give it to you as payment for the far vessel. For the near vessel you cannot obligate me, because with respect to it I was not negligent. You cannot say that I performed a continuous act of breaking on the near vessel. With respect to it I was not negligent at all. Therefore Tosafot says you will be exempt. Not only that: Tosafot says this as a simple logical point. That is why I said that Tosafot does not explain this as a case of two vessels but as a case of one long vessel, because according to Tosafot, if it were talking about two vessels there would be no novelty at all. Therefore he explains it as one long vessel. Meaning, Tosafot sees this as simple logic. So it is quite clear that this is indeed how Tosafot understood the law of “it begins with negligence and ends with an unavoidable accident.” Tosafot understood that “it begins with negligence and ends with an unavoidable accident” does not mean that you are responsible for the unavoidable accident that happened at the end—we talked about a mechanism of responsibility; that is how I explained the exemption in the case that begins with theft or loss—but rather that the initial negligent act extends into the ending of unavoidable accident, and this is considered one continuous negligent act. Therefore, if it begins with negligence and ends with an unavoidable accident, he is liable. And if it is two vessels, then this is what Tosafot says here: he is exempt. Meaning, the distinction Tosafot makes between one vessel and two vessels basically assumes—and proves—that Tosafot’s view is that the liability of “it begins with negligence and ends with an unavoidable accident” is as though there were a continuous damaging act here.
What about one vessel? With one vessel, it really is a bigger novelty. And that is why Tosafot explains it as one vessel and not as two vessels, because with two vessels it is obvious to him. With one vessel you could say that this is a continuous act of breaking, because both the negligence and the unavoidable accident happened to the same vessel. Tosafot says yes, but the negligent part endangered the far part of the vessel, while the unavoidable accident struck the near part of the vessel. So how can you say there was a continuous act of breaking when the negligence concerned a different part of the vessel from what was eventually broken? What was the continuous act focused on? On the near part? Regarding the near part I was not negligent. This sharpens even more what I proved in Tosafot: that according to Tosafot, the conception of “it begins with negligence and ends with an unavoidable accident” is that there is a continuous act of breaking here. With a long vessel this is even stronger, because you can really see that this act of breaking is not that we regard the vessel as broken all along the way, but rather that the action is a continuous act of breaking. Therefore I say: that continuous act of breaking cannot be attributed to the near part, because the beginning of the act of breaking concerned the far part of the vessel. You see here that he views the act of breaking as a continuous act; the act was done on the near part. Therefore the application of Tosafot to a long vessel as opposed to two vessels sharpens even more the inference I made in Tosafot about how he understands the whole basis of liability in a case that begins with negligence and ends with an unavoidable accident.
Now let’s look at the Meiri. “Nevertheless, if the vessels were close enough to the wall that it is not the way of one who jumps that his jump should land on them, but rather beyond them, and they fell on them and they broke, they are exempt, for this is a case whose beginning and end are both unavoidable accident. And this is what they said here in the Talmud, that the vessels are close, etc., for when they jump, they jump outward, and it turns out that even with respect to the jumping it is unavoidable accident, and therefore its beginning and end are both unavoidable accident. And there is no law of half-damages here, for its intention is not to damage. And some disagree and obligate half-damages, but that does not seem right to me.”
So if these guys jump onto the near vessel—if they jump onto the near vessel—he brings two opinions here: whether one would be liable for half-damages under the category of goring, or whether this is a full unavoidable accident and therefore exempt. And we saw that this is a dispute among the medieval authorities (Rishonim) in the previous lecture. But how does he explain the Talmud? So why, in jumping, is he liable? After all, the one who says he is liable for half-damages—that view which he refers to when he says “some disagree and obligate half-damages”—they will explain that in the Talmud we are talking about vessels that were close to the wall, right? The vessels were close to the wall. Now if the dog and the goat jumped onto them—which is very unusual, because they jumped and broke a vessel very close to the wall—he pays half-damages. Ah, but the Talmud says full damages. So we discussed maybe they had a different text or something like that. If they fell, then they are exempt, because that is an unavoidable accident. What about “it begins with negligence and ends with an unavoidable accident”? We said that if it begins with an act of goring by an animal with no prior record and ends with an unavoidable accident, he is exempt. That is how “some disagree” explain it. “Some disagree” will explain that the vessels themselves were so close to the wall that it is not the way of one who jumps for his jump to land on them unexpectedly. But what does the Meiri explain?
[Speaker B] Once again—what do “some disagree” say? What is their position?
[Rabbi Michael Abraham] “Some disagree” are apparently saying like the Yad Ramah, that the vessels were close to the wall. So if they jumped onto the vessels, they are liable. Why? Because this is the category of goring by an animal with no prior record, and there one is liable for half-damages. Ah, but it says full damages—apparently a different text. Okay? If they fell, they are exempt. Why are they exempt? Because that is an unavoidable accident. But you’ll ask me: what about a case that begins with an act of goring by an animal with no prior record and ends with an unavoidable accident? If it begins with an act of goring by an animal with no prior record and ends with an unavoidable accident, he is exempt, because such goring is itself an unavoidable accident; only half the damages are a fine. Fine? That is the Yad Ramah’s view, what we saw. Yes, yes. That is “some disagree.”
But the Meiri himself claims that if they jump onto the close vessels, there is no liability at all—not even half-damages. Completely exempt. So how does he explain the Talmud? After all, the Talmud says that if they jumped onto them, he is liable for full damages, and if they fell onto them, he is exempt. So if they fell onto them, I understand, because with close vessels this is a case whose beginning and end are both unavoidable accident, right? But what is the law that if they jumped onto them he is liable? After all, if the vessels are close, then the Meiri writes explicitly that one is not liable even for half-damages—completely exempt. But the Talmud says that if they jumped onto them, he is liable. That is proof for what I said in the previous lecture: I think there are medieval authorities (Rishonim) who learn the Talmud to be talking about two cases. At least the statement— I said one has to distinguish between the Mishnah and the statement. In the statement in the Talmud, it is talking about two different cases. If they were close to the wall and fell on them, then they are exempt because this is an unavoidable accident. If they were far and jumped onto them, they are liable because this is normal damage—it is the category of trampling. That is what is written in the Talmud. The Talmud is speaking about two different cases.
If they jumped, they are liable—meaning with far vessels, because with close vessels jumping does not break them. And when it says they fell—what is it talking about? Close vessels, because for distant ones the fall does not break them. And if they fell on close vessels, they are exempt. Then our whole topic is not dealing at all with “it begins with negligence and ends with an unavoidable accident.” That was the question. When the Talmud initially asked, it asked: how can it be that for jumping he is liable and for falling he is exempt—either way, whichever way you look at it? If the vessels are close, then it works one way, and if the vessels are far, it works another way. What does the Talmud answer? No—when in the case of falling they are exempt, that is because the vessels are close. Okay, and in the case of jumping what is it talking about? Jumping is talking, as we thought before, about far vessels. And then there is no discussion here at all of “it begins with negligence and ends with an unavoidable accident.” In the final analysis, according to the Meiri, the Talmud is not dealing with the law of “it begins with negligence and ends with an unavoidable accident.” The Talmud is speaking about two different cases. If the vessel was far and it broke through jumping, you are liable because this is normal trampling damage, full damages. If the vessel was close and it broke in a fall, you are exempt because that is an unavoidable accident, and this is a case whose beginning and end are both unavoidable accident. There is no “it begins with negligence” here, because there is no risk at all that they would break it by jumping, since it is close. To the point that even if they actually did jump in some very strange way and broke it, you would still be completely exempt—not even half-damages would apply. This is a full case whose beginning and end are both unavoidable accident. And overall the Talmud is simply talking about two different cases.
[Speaker B] It seems to me that Rashi understood it that way. Can you hear me? It seems to me that Rashi implies that—he understood it that way.
[Rabbi Michael Abraham] Yes? Why? How do you see that?
[Speaker B] Rashi, on the words: “that the vessels were brought very close to the wall, so there is no beginning with negligence, because if they had jumped, they would have jumped beyond the vessels.” Meaning, yes, he says briefly that if they jumped, it really would have been exempt. It seems to me that he understood it as two cases.
[Rabbi Michael Abraham] We’d have to continue the same calculation we made with the Meiri. You’re right. If you continue the line of reasoning we made with the Meiri, then that is what should come out. Because otherwise, in jumping in such a case, they are exempt. So what is the law written in the Talmud that in jumping he is liable for full damages? You have to say that it is simply a different case.
[Speaker B] Clearly he did not understand it like Tosafot, because he says they were brought very close to the wall. He did not understand that it was in the middle, or that it was one long vessel. He understood that “brought close” means completely close to the wall.
[Rabbi Michael Abraham] And the Yad Ramah understands it that way too. He claims that the liability for jumping is liability for half-damages. If it begins with an act of goring by an animal with no prior record and ends with an unavoidable accident, he is exempt—therefore in falling he is exempt. Rashi does not mention half-damages. Once again, read his wording to me; I don’t have it in front of me right now. What does he say when they are brought close and it jumped onto them?
[Speaker B] “That the vessels were brought very close to the wall, so there is no beginning with negligence, because if they had jumped, they would have jumped beyond the vessels; and when they fell upon this wall and the vessels broke, it was by unavoidable accident.”
[Rabbi Michael Abraham] So with Rashi it’s not certain. Not certain. Because Rashi can say that if they are close to the wall and nevertheless they jumped onto them—usually by jumping they would not have been broken, so that is not negligence. It happened, and nevertheless they jumped onto them and broke the close vessels. Rashi could in principle go with the Yad Ramah.
[Speaker B] Meaning half-damages?
[Rabbi Michael Abraham] Half-damages. Why exempt for the fall? Because if it begins with an act of goring by an animal with no prior record and ends with an unavoidable accident, he is exempt.
[Speaker B] Okay, okay.
[Rabbi Michael Abraham] But in the Meiri it is written explicitly that if they jumped onto the close vessels, they are completely exempt; he disagrees with “some disagree.” So once he says they are completely exempt, then in the Meiri this whole calculation is unavoidable—that it is talking about two different cases.
[Speaker B] And in Rashi there is room to hesitate.
[Rabbi Michael Abraham] Okay?
[Speaker C] Okay, let’s take a short break—five minutes—and come back. Okay, we’re back, friends, let’s turn on cameras. Shlomo, are you with us? Shlomo? Yes, I’m with you.
[Rabbi Michael Abraham] Good. Now in Tosafot Rabbenu Peretz here in the Shitah Mekubetzet: “And Rabbi Peretz answered, and this is his wording: It seems to me that it is taught by way of alternatives: if they jumped and broke vessels that were far away, they pay full damages; if they fell and broke vessels that were close by, they are exempt.” That is exactly what I explained in the Meiri earlier, right? Basically we are talking about two different situations, against Tosafot. Tosafot says it is the same situation—a long vessel; or we talked about the possibility of two vessels; or vessels located at an intermediate distance. Rabbenu Peretz says no, what are you talking about? Just as we saw in the Meiri—except that he says it explicitly. In the Meiri it came out through the reasoning; here he says explicitly: in the case of jumping it is talking about far vessels, in the case of falling it is talking about near vessels, and everything is fine.
“But the student of the Rabbi, Rabbenu Peretz, of blessed memory, answered: because when they jump, they jump outward. And this is difficult—for why are they liable even if they broke them through jumping? Didn’t you say they jump outward?” Yes, we are talking about vessels that were close. So basically even if they jumped and broke those vessels, why are they liable? After all, the expected jump was a jump to a distance. “And one may say that it is talking about two vessels, such that whether by falling or by jumping they break one, and when it says outward, it means outward from the first vessels, which are broken by falling.” He explains it— I said we would get to this—like Tosafot, but with two vessels: you threaten the far vessel, and then fall on the near vessel. “And so too Rabbi Yeshaya answered”—that is Tosafot Rid—”and if you ask, what does the case of jumping teach us? One may say that there are still other vessels farther away that break through jumping, and nevertheless, although with respect to the far ones he is negligent, with respect to the near ones this is not called beginning with negligence, because with respect to them there is no negligence.” Meaning, he goes in the direction of Rabbenu Peretz—following him; he was before him—but in the basic direction of Tosafot. But here you can already see the explanation. What in Tosafot I only worked out, here you can actually see the explanation: that if the threat posed by the negligence concerns one vessel and the unavoidable accident happens to a different vessel, the law of “it begins with negligence and ends with an unavoidable accident” does not apply.
Just one further comment remains. So basically the student of Rabbenu Peretz and Rabbi Yeshaya—that is really the same view. The Meiri is also the same view. In principle they follow Tosafot’s approach, in that it is not taught by way of alternatives as Rabbenu Peretz himself says, but rather that this is talking about one case in which both jumping and falling could occur. You thought Tosafot was really going in that direction? But still there is a small difference between them and Tosafot—between the student of Rabbenu Peretz and Tosafot Rid on the one hand, and Tosafot on the other. What do you say? What is nevertheless the difference?
[Speaker C] The difference between whom and whom? Between—
[Rabbi Michael Abraham] Between the student of Rabbenu Peretz and Tosafot Rid, and Tosafot in the answer of the long vessel—the second answer. I asked: according to Tosafot, why doesn’t he explain it as two different vessels? So here they do explain it as two different vessels. Why doesn’t he explain it as two different vessels? How did I explain it? Because apparently according to his view, if it were two vessels then the Talmud would have no novelty here; it would be obvious. It’s obvious that for the far one you are liable, because that is negligence—there’s nothing to discuss. But it is also obvious that for the near one you are exempt, because here it is clear that the law of “it begins with negligence and ends with an unavoidable accident” does not apply. That is obvious. Therefore one had to explain it as one long vessel, because there there was room to think that the law of “it begins with negligence and ends with an unavoidable accident” would apply, and the novelty of the Talmud is that even in such a case it is like two vessels. Right? That is how I explained Tosafot.
Now let’s make the same calculation for the student of Rabbenu Peretz and Tosafot Rid. They specifically explain it as two vessels, not as one long vessel. So first of all, according to their view it is apparently not obvious, because otherwise why would the Talmud say this law at all? Obviously—it’s obvious. No, according to them it is not obvious. Why? Because there was still room to say that if you were negligent regarding the far vessel, you would be liable for the near vessel. Why? Because there is some kind of continuous damaging act here with respect to the near vessel, even though the initial threat was to the far one. The question is what your anchor point is. We discussed this—I proved in Tosafot that he understands “it begins with negligence and ends with an unavoidable accident” as a continuous act of damage, and that one is liable for the negligence. The initial assumption from which the Talmud comes to exclude—an assumption that according to Tosafot does not exist at all—is that one is liable for the unavoidable accident. Once you were negligent at the beginning, we do not regard the unavoidable accident at the end as the conclusion of the negligence, but rather we regard the negligence at the beginning as the beginning of the unavoidable accident. So if the unavoidable accident happened to the close vessels that broke at the end in the fall, then the fact that you were negligent regarding the far vessels imposes on you the status as if you performed a continuous act of breaking on the close vessels, not the far ones. Therefore there was room to think that he would be liable for the close vessels. The law of “it begins with negligence and ends with an unavoidable accident” would apply here. The Talmud teaches us that Tosafot is right. It is not obvious according to Tosafot Rid and Rabbenu Peretz. But in the end the Talmud says that in two vessels this is in fact true.
Tosafot doesn’t explain it that way because Tosafot apparently thinks this is obvious. Rabbenu Peretz and Tosafot Rid raise the possibility that it might not be so—it is not obvious. True, in the end the Talmud says that in two vessels it is so, but there was room initially to say otherwise. Why otherwise? Because the question is whether we drag the negligence over to the unavoidable accident, or the unavoidable accident over to the negligence. If we drag the negligence over to the unavoidable accident, then the unavoidable accident that ultimately broke the close vessels means the negligence too is considered as relating to the close vessels. Then you performed a negligent act on the close vessels, and you would be liable. And that initial assumption is one that, according to Tosafot, doesn’t even get off the ground. But in the end the Talmud says that in fact he is exempt for the fall onto the close vessels. Why? Because the threat to the far vessels is what creates the liability. And the unavoidable accident that finishes the process only says that there was here a continuous act of breaking that began with negligence. But you cannot say that if what ended up breaking were the close vessels. Therefore you are exempt.
So this is a difference which is really not a practical legal difference, only a difference in whether there is another initial assumption that does not fit the law. According to Tosafot there is not even any other initial assumption; according to these medieval authorities (Rishonim), there is another initial assumption, but the Talmud says no. But there may also be a practical legal difference between them, because Tosafot explains it as one long vessel. If this law were true also for one long vessel, I would expect these authorities too to explain the Talmud as one long vessel, because there it is more novel, as Tosafot said. It is more novel than in two vessels. If you think this is also true in one long vessel—that he is exempt for the fall because you broke the near part of the vessel while through negligence you threatened the far part—if these authorities think that this law is true regarding one long vessel just as with two different vessels, I would expect them to explain the Talmud as one long vessel and not as two different vessels. Apparently it follows from here that they disagree with Tosafot in practical Jewish law, that with one long vessel this would not be the case. In short, according to them there is an initial assumption in the case of two vessels, whereas according to Tosafot there is none. But according to them, the initial assumption that exists with one long vessel remains even in the final conclusion. It is not just an initial assumption—it is the conclusion. You really are liable for the fall that happened at the end, even though it breaks a different part of the vessel. As long as it is the same vessel, you are liable. That is precisely why they explained it as two vessels, in order to explain why for the fall he is exempt.
Of course, this is not conclusive. It is always a hard question how to deal with this sort of reconstruction in the medieval authorities (Rishonim). Because you can say: they just didn’t think of the concept of a long vessel. Tosafot came up with such a situation of a long vessel, but that is a pathological situation. Usually you are dealing with a local vessel like that, which breaks either through jumping or through falling. This invention of a long vessel is a creative invention. Who says they thought of it? So therefore they explained it as two vessels, but theoretically it could be that they would say the same thing about one long vessel as well. It is always a question how much you can infer from the fact that a certain medieval authority did not bring a different answer. Maybe he didn’t bring it because he did not think of it. Again, here it appears in Tosafot. Rabbenu Peretz should apparently have seen it. I don’t know which of the Tosafists wrote it; Rabbenu Peretz is also one of the Tosafists. So I don’t know—bottom line, this is a question I’m not going to stake my life on, that Rabbenu Peretz necessarily disagrees in practice with Tosafot and Tosafot Rid, but at least there is such a possibility. Okay, so that is regarding these medieval authorities (Rishonim).
[Speaker C] So basically what comes out is that according to all these medieval authorities (Rishonim)—
[Rabbi Michael Abraham] The Talmud sets this up in a case where the threat created by the negligence and the unavoidable event that actually happened apply to two different things. So it is not the same situation. Tosafot, by contrast, sets it up within the same situation. But the principle that underlies Tosafot’s distinction, in Tosafot’s second answer, is accepted by them as well. Tosafot is talking about the same situation, but it is still two different parts of the vessel, and they set it up as two different vessels, or “it teaches by cases,” sorry, but it is two situations. It is a threat to one vessel and a fall onto another vessel, but within the same overall situation. The situation is that there are two vessels, one near and one far. And Rabbeinu Peretz himself, as we saw in the Meiri, says that “it teaches by cases.” What does that mean? The rule that if they jumped he is liable, and the rule that if they fell he is exempt, are two different laws speaking about two different situations. Because in reality, what is dangerous in the case of jumping is a distant vessel; what is dangerous in the case of falling is a nearby vessel. So the Talmud does not need to say explicitly that these are two different situations. It is obvious: if damage happened through falling, it is a nearby vessel; if damage happened through jumping, it is a distant vessel. Okay? So that is “it teaches by cases.” That is the summary of the approaches here.
And now one more comment. What you see, at least in these approaches of Tosafot and Tosafot Rid and the student of Rabbeinu Peretz, is that if you threaten one part or one vessel, in Tosafot’s second answer, and the unavoidable event happened to something else, then there is no rule of “it began in negligence and ended in an unavoidable event.” That is a major novelty in the laws of “it began in negligence and ended in an unavoidable event,” and I said that apparently the underlying idea is that they view “it began in negligence and ended in an unavoidable event” as an ongoing act of negligence, and in essence liability is incurred for the negligence, as Rabbi Akiva Eiger explained in the Rif according to Abaye. I already suggested that back when we discussed “it began in negligence and ended in an unavoidable event” in the laws of bailees, but from these medieval authorities (Rishonim) it is pretty clear that this is how they understood it. This act is an ongoing negligent act, and that is how they understand “it began in negligence and ended in an unavoidable event.”
So why is “it began with theft or loss and ended in an unavoidable event” exempt? First of all, I do not know if it is exempt according to them. Only in Tosafot’s first answer, if you remember, where he said that we are talking about an intermediate range between falling and leaping, were we forced to conclude that here there is an exemption of “it began with theft or loss and ended in an unavoidable event.” Tosafot’s second answer—what does he not accept in the first answer? Maybe precisely that point. He claims that “it began with theft or loss and ended in an unavoidable event” is liable. And that may fit his view very well, because as Rabbi Akiva Eiger assumes, if you understand this as an ongoing action, there is no reason at all to distinguish between “it began in negligence” and “it began with theft or loss.” Because if it began with theft or loss and ended in an unavoidable event, then that is an ongoing act of theft or loss, fine, and you are still liable. Only if you frame the issue as whether the vessel is already considered broken right now is there room to distinguish between theft or loss and negligence. In negligence you broke the vessel; in theft or loss you only became responsible for it. Okay, but if this is an ongoing action, Rabbi Akiva Eiger told us, then there is no difference between “it began with theft or loss” and “it began in negligence.” And if that is so, it could be that Tosafot in the second answer, where he speaks about an ongoing action, is in fact rejecting exactly that point from Tosafot’s first answer, and he argues that “it began with theft or loss and ended in an unavoidable event” would be liable.
According to the Rashba and according to Tosafot’s first answer and other medieval authorities (Rishonim), we saw that not so—that “it began with theft or loss and ended in an unavoidable event” here really is exempt. And that raises the question: what would Rabbi Akiva Eiger say on the Rif? Rabbi Akiva Eiger on the Rif says that as practical Jewish law there is a dispute between the Rif and Tosafot. Even though they disagree only according to Abaye, there is also a disagreement between them as practical Jewish law, because according to the Rif, “it began with theft or loss and ended in an unavoidable event” is liable. That is Rabbi Akiva Eiger’s claim. I argued that this is not necessary, and then there is no problem. But according to Rabbi Akiva Eiger on the Rif, it follows that as practical Jewish law, “it began with theft or loss and ended in an unavoidable event” is like “it began in negligence and ended in an unavoidable event”: liable. That certainly does not fit with Tosafot’s first answer here and with the Rashba here and others. But that is fine, because Rabbi Akiva Eiger—or the Rif—does not accept Tosafot there in that passage either.
Okay? So that is fine. The Rashba and Tosafot’s first answer here do not fit with Rabbi Akiva Eiger on the Rif, but Rabbi Akiva Eiger on the Rif has the option of learning like the other medieval authorities (Rishonim) we just saw, who claim that “it began with theft or loss and ended in an unavoidable event” really is liable. And the exemption is not because it began with theft or loss, but because it began in negligence with respect to one thing and ended in an unavoidable event with respect to something else, and that is exempt. It has nothing to do with “it began with theft or loss.”
And according to my own view, that even in the Rif Rabbi Akiva Eiger is not right, then Rabbi Akiva Eiger can go with these medieval authorities (Rishonim)—that is, also with the Rashba—so then it no longer matters; everything remains open.
Okay? Now one more comment. In Avi Ezri, yes, Rabbi Shach in Avi Ezri raises an objection to Rabbi Akiva Eiger. When Rabbi Akiva Eiger explained the Rif according to Abaye—why according to Abaye there need not be a connection between the negligence and the unavoidable event, because from the moment of negligence the vessel is essentially considered lost, and you become liable for the negligence itself, so even if it ends in an unavoidable event you are liable—that is the Rif according to Abaye, according to some interpreters based on Rabbi Akiva Eiger. Rabbi Shach asks about this: you can say that in the laws of bailees, but in tort law you cannot say such a thing. Because in the laws of bailees, an object was deposited with you for safekeeping, say a cow. You left the door open, so you were negligent. In the end it died naturally. Fine. Abaye says: “it began in negligence and ended in an unavoidable event,” you are liable. Why are you liable? Because from the moment you left the door open, as far as I am concerned that cow no longer exists. Now, had it not died in the end, I would have returned that very cow itself as payment. But now the cow is gone, so you cannot return it, so you pay. There is no need for any connection between the negligence and the unavoidable event, and so on. Yes, that is what Rabbi Akiva Eiger explained in the Rif.
That you cannot say in tort law, only in the laws of bailees. Why? Because in tort law we are talking about the damaging animal that I failed to guard, not the damaged animal. I was negligent and did not guard the damaging animal, not the damaged one. So what? What is considered broken from the very first moment, or killed or harmed, damaged from the very first moment? There is not yet even any object before us that is in danger. “It began in negligence and ended in an unavoidable event” according to Rabbi Akiva Eiger on the Rif according to Abaye means that the negligence turned the object that was eventually damaged into something already damaged now. From the moment of negligence, as far as I am concerned it is already damaged. But at the stage of negligence in guarding, when I left the door open, then the cow is, so to speak, about to go out and cause damage. Damage whom? There is nobody here. After it goes out and looks for someone, it will find someone and damage him, but right now no one here is even under threat. So how can Rabbi Akiva Eiger’s whole direction on the Rif apply at all? That is Rabbi Shach’s question in Avi Ezri.
And it may indeed be that in tort law we will always need a connection between the negligence and the unavoidable event. Why? Because if there is a connection between the negligence and the unavoidable event, then this is an ongoing act of damage, and when the unavoidable event happens at the end, it has happened to a defined object, so there is no problem. Then I can attribute the negligence to it as well and say that this object was already damaged from the moment of the negligence. But if there is no connection between the negligence and the unavoidable event, then at the moment I committed the negligence there is still no object here that is about to be damaged; nothing is related. Therefore one cannot say what Rabbi Akiva Eiger says in the Rif in the context of tort law. That is his claim.
And it is not necessary, because even if there is no connection between the negligence and the unavoidable event, first of all this is not as practical Jewish law, because it is only according to Abaye, so it is not terrible. Fine—so Abaye will not say in tort law what he says in the laws of bailees. As practical Jewish law, when we rule like Rava, tort law and the laws of bailees are the same. But I am saying that even according to Abaye it is not certain, because in the end the discussion begins when this animal did in fact damage something. I left the door open, and then it went out and caused damage. Okay? And it caused damage in a way that it would have gone out even without the open door—yes, it dug underneath. Fine? It dug under the open door; that is already our topic. It dug under the door that I left open. So that is “it began in negligence and ended in an unavoidable event,” and there is no connection between the negligence and the unavoidable event, because it would have dug even if I had not left the door open. Okay? So there is no connection between the negligence and the unavoidable event. I argue that even so, you can still say that one is liable in tort law. Why? Because I claim that leaving the door open turned the object that was eventually damaged into something already damaged now from a halakhic standpoint. You are responsible for what happened in the end, and we view opening the door as an act that is the same act of damage that happened in the end, perhaps retroactively. Once the animal caused damage, we view the act of damage as though it happened at the moment the door was opened. So that is one possible way to explain the Rif according to Abaye even in the context of tort law.
But Rabbi Shach puts an important distinction on the table between tort law and the laws of bailees, and we need to take it into account. In the laws of bailees there is a clearly defined object from the start: the object that is damaged is the object entrusted to me for safekeeping. In tort law the damaged object is not defined. It is whatever the animal, after it goes out, will damage. So we will see later that this may have implications.
But let us come back for a moment to our case of the dog and the kid that jumped. Here we are dealing with tort law, not the laws of bailees. And notice that the Talmud keeps insisting, certainly according to the explanations of the medieval authorities (Rishonim), on showing us that we are dealing with a situation where there are specific vessels under threat. Otherwise, why should I care whether the vessels were near or far? The very fact that there can be distant vessels, and you put the kid and the dog on the roof, means you were negligent. Why do they have to be there in practice? After all, this is someone else’s courtyard; he can always place vessels there in that spot. Why do the vessels need to already be there, so that the dog and the kid are on the roof and only then it counts as negligence? It is negligence even without that. Since it is possible that the person might place vessels there, and he has every right to, it is his courtyard, and now they may jump down and break his vessels—why is the Talmud so insistent that the vessels already be there beforehand and be under threat? And especially according to Tosafot, or according to Rabbeinu Peretz even more so, and the students of Rabbeinu Peretz and Tosafot Rid, who establish the case with two vessels. Here you really see clearly that “it began in negligence” is considered “it began in negligence” only with respect to an object that is already in a threatened location. It is not a general statement that if you put the dog and the kid on the roof, that is called negligence because in principle they can cause damage. There has to be a concrete object under threat from the dog and the kid for me to treat this as “it began in negligence.” Why? Where did we find such a thing?
In our passage, for example, this is not how it works. In our passage, when I was negligent with the door, there was a weak door and the animal dug under the door. Now, what do they want to hold me liable for? Afterwards it went outside, walked ten kilometers, and damaged something. There is nothing here right now that is slated for damage. Nothing concrete. It will go looking, and if it runs into something, it may damage it. Okay? Here, even though this is tort law, in that sense it resembles the laws of bailees. Because this is a case of tort law where there is a concrete object before me that is threatened by my negligence. In that sense it is like the laws of bailees. Here Rabbi Shach’s objection to Rabbi Akiva Eiger does not arise. Here one can say that the threatened vessels—the distant vessels threatened by my negligence, since they can jump on them and break them—are considered broken from the moment I was negligent. No problem. But of course that will not help if in the end the fall broke the nearby vessels. Because the fact that they are considered broken is all very well; then I am liable for them, excellent, and I take them and pay with them—as I said earlier in explaining Tosafot Rid and the students of Rabbeinu Peretz.
Okay? But the basic idea around which this whole passage turns—that the passage establishes the case with nearby vessels and distant vessels—why make all these forced interpretations at all? The very fact that there can be vessels, near or far, that might be damaged—I can give you the simplest solution imaginable, which no medieval authority (Rishon) raises here in the passage, a solution to all the practical and halakhic difficulties. The Talmud says we are talking about nearby vessels, and then in the case of falling he is exempt. Right? Now why do I say this should be “it began in negligence and ended in an unavoidable event,” so he ought to be liable? Not because there are distant vessels, or because it is a long vessel, or whatever you want. Rather because there could be distant vessels. After all, I put them on the roof; they can jump far and break vessels if someone places vessels there. Why do I need to search for forced interpretations about where exactly vessels were standing that are not the vessels that were ultimately broken? The vessel that was ultimately broken is the nearby one; it was broken in the fall. Why do I need there to be concrete vessels under threat from the jump? Why is the mere theoretical possibility not enough—that if someone puts vessels there and the dog and kid jump, they will damage them? And throughout the whole passage you see that this is not enough. Why not? Why do we need a concrete threat?
So first, it is absolutely possible that this is precisely because of Rabbi Akiva Eiger’s difficulty. Because according to these medieval authorities (Rishonim), as I said, this is essentially an ongoing process in which the vessel is viewed as broken from the moment I was negligent. Already then the vessel is viewed as broken. Okay, so according to these medieval authorities (Rishonim), yes, there has to be a connection between the negligence and the unavoidable event and all the rest of what we discussed, but on the conceptual level the vessel is viewed as broken from the start. In order to say such a thing, obviously there must be a concrete vessel under threat. Otherwise, which vessel am I viewing as broken? There is not yet any vessel at all that is at risk. And therefore this whole passage assumes that there is some particular vessel under that threat. A merely theoretical threat is not enough, a hypothetical threat is not enough, a threat that might materialize is not enough. There has to be a threat to a concrete vessel. Why? Because the whole conception is that the vessel is considered broken from the moment I was negligent and the threat was created.
Of course there is another possibility, namely that this is simply forced by the language of the Talmud. Because the Talmud says that if they jumped he is liable, and if they fell he is exempt. How can there be a case where if they jumped he is liable when the vessel is far away, and if they fell he is exempt when the vessel is nearby? By saying “it teaches by cases.” If it teaches by cases, then you do not need there to be two vessels, both the near one and the far one. But then notice: in that case, for the falling he is indeed exempt. Why? But this was “it began in negligence” with respect to a hypothetical vessel that could be standing far away. No—there is no “it began in negligence” in such a case. “It began in negligence and ended in an unavoidable event”—and here we arrive at the principle I mentioned in Tosafot, or in the student of Rabbeinu Peretz, or in Tosafot Rid: “it began in negligence and ended in an unavoidable event,” at least in tort law, is a case of “it began in negligence and ended in an unavoidable event” that sees the object as broken. To see an object as broken from the outset, it has to be a concrete object under threat. This is not like “it began in negligence” in bailees—sorry, in ordinary tort law, not in bailees. In ordinary tort law, where the animal can go outside and damage something, it is completely different. Here you need a concrete threat. And if there is no concrete threat, then indeed I will not be liable for the ending in an unavoidable event.
What happens if I put the dog and the kid on the roof, and then someone comes and places distant vessels there after the dog and kid were already on the roof? And now they jump and break the vessels. I claim that perhaps the owner of the kid and the dog would be liable. Because he is not allowed to put them on the roof, since there is a possibility that they will jump and break the distant vessels, even though no concrete vessels were there beforehand. But all of that, of course, is only if what ultimately happened was indeed the damage of the negligence—that they jumped and broke the vessels. But a hypothetical possibility that there might be vessels there, which makes me negligent, will not make me liable for an ending in an unavoidable event regarding nearby vessels. That is what I want to claim. Do you follow what I am saying?
That is, if the dog and the kid are standing on the roof and there are no vessels at all below. Fine? Now someone comes and places distant vessels there after you put them on the roof. He places distant vessels there, and the dog and kid jump and break the distant vessels. I claim he would be liable. Why would he be liable? He is negligent. After all, there were no vessels in the distant place opposite the dog and kid when I brought them up onto the roof. Fine, but this is the other person’s courtyard, and you need to take into account that he may place vessels there, just as in every negligence case in tort law. When I open a door in front of a cow or an ox, do I know exactly which object is standing there opposite it that may be damaged? No. But it goes outside, and if it finds an object and damages it, the fact that I left the door open makes me negligent, and I have to pay. The same is true here.
The only reason I need the vessels here to be concrete is so that I can also impose liability for the end in an unavoidable event. Not for the negligence. For the negligence I am liable even without that. For the end in an unavoidable event I cannot impose liability. Why not? Because in order to impose liability for the end in an unavoidable event, there has to be an ongoing act of breaking. An ongoing act of breaking cannot exist unless the vessel that was broken in the end is the same one that was under threat from the beginning. Because if I threatened one vessel and then broke that vessel, or I threatened only hypothetically with no concrete vessel at all, and in the end I broke this vessel in another context through an unavoidable event, then there will not be a rule of “it began in negligence and ended in an unavoidable event.”
One final comment on the Rif’s approach. On the passage on 21b, the Rif does not spell this out, does not bring these distinctions at all—nearby vessels, distant vessels, what is the law if they fell, if they jumped, nothing. He simply brings the language of the Mishnah, and that is all. This whole discussion is omitted from the Talmudic discussion as he records it. And that is very interesting. Because it may be that according to Rabbi Akiva Eiger—after all, the Rif holds that as practical Jewish law “it began with theft or loss and ended in an unavoidable event” is liable—so it may be that the Rif really did learn the Talmud here like the Rashba: that the exemption in the Talmud is because this is “it began with theft or loss and ended in an unavoidable event.” But who is it that holds that “it began with theft or loss and ended in an unavoidable event” is exempt? Abaye. After all, that is exactly Rabbi Akiva Eiger’s whole calculation—Abaye on page 93 and Abaye on page 36. But the Rif says yes, however, as practical Jewish law we do not rule like Abaye, we rule like Rava. And Rava holds that “it began with theft or loss and ended in an unavoidable event” is liable. Therefore he does not bring this passage as practical Jewish law. All this business of nearby and distant vessels is not relevant.
And then this can fit very well with Rabbi Akiva Eiger on the Rif. Rabbi Akiva Eiger on the Rif basically says that as practical Jewish law “it began with theft or loss and ended in an unavoidable event” is liable, and the Rif actually does learn like the Rashba—not as I said earlier, that he cannot learn like the Rashba. He does learn the Talmud like the Rashba: that here we are dealing with “it began with theft or loss and ended in an unavoidable event,” and like Tosafot’s first answer, that it began with theft or loss and ended in an unavoidable event and is therefore exempt. The Rif says yes, but that works according to Abaye. And just as the anonymous Talmudic discussion on page 93 the Rif attributed to Abaye and therefore did not rule that way as practical Jewish law, so too we see that for him there are anonymous Talmudic discussions that go according to Abaye’s view and that he does not rule like in practice. So it is certainly possible that this passage as well goes according to Abaye, and therefore he did not rule it as practical Jewish law, all this business of nearby and distant vessels.
Rather, “it teaches by cases”: if it was far and they jumped, then he is liable; if it was near and they fell, then he is exempt. It has nothing to do with “it began in negligence and ended in an unavoidable event”; that is irrelevant. And then there is really no need to tie the Rif to the dispute among the medieval authorities (Rishonim) here. It is related in terms of the flow of the Talmudic discussion, but he can simply decline to rule like the Talmudic passage. If he rules like the Talmudic passage, then he cannot go with the Rashba—if I explain the Rif like Rabbi Akiva Eiger. If I explain the Rif according to my own view, then yes, he can. I mean according to Rabbi Akiva Eiger. But if he does not rule like the Talmudic passage, then on the contrary, maybe that is exactly why he did not rule like the passage—because he learned like the Rashba.
And of course all this assumes that there is a connection between “it began in negligence and ended in an unavoidable event” in tort law and in the laws of bailees. And we saw that one who takes the rule that “it began with theft or loss and ended in an unavoidable event” is exempt—in effect that is quoting the position that “it began in negligence and ended in an unavoidable event” is liable, and Rashi brings the Talmud in Bava Metzia 42, which deals with the laws of bailees. From the plain reading of the medieval authorities (Rishonim), it seems that for them this is the same discussion in bailees and in tort law.
But in principle one could have gone in a completely different direction and said that this is not the same discussion at all, and according to the Talmud’s conclusion, “it began with theft or loss and ended in an unavoidable event” is liable, as according to the Rif in bailees, and both page 93 and the passage on 36 speak about bailees—they were speaking about bailees. But here, in our tort law, it is something else. There too he might agree that “it began with theft or loss and ended in an unavoidable event” would be exempt. For example, if we learn that “it began with theft or loss” means liability as responsibility in tort law, and therefore if it ends in an unavoidable event there is no responsibility—there is no insurance against an act of God. In bailees, he claims, this is liability for negligence, not responsibility, and therefore you are liable even in “it began with theft or loss” according to Rava as practical Jewish law. But in tort law it may be that he understands it as liability of responsibility, and if so, then “it began with theft or loss and ended in an unavoidable event” would be exempt even as practical Jewish law.
And we will see later that there is an explicit approach like this among the medieval authorities (Rishonim), the view of the Raavad and others. There is explicitly such a view, that in tort law “it began with theft or loss and ended in an unavoidable event” is exempt. We saw this in the Rashba here as well, but we will soon see it further: that even where there is no connection between the negligence and the unavoidable event, in tort law if there is no connection between the negligence and the unavoidable event, it will also be exempt, and accordingly in “it began with theft or loss” it will be exempt. Everything we discussed according to Abaye in the laws of bailees would be ruled as practical Jewish law in tort law. Okay, we will see this in the Raavad’s approach.
Okay, I knew I had one last comment I wanted to make. It may depend on the question of how one understands liability in tort law. Is liability in tort law liability for negligence, a sanction for negligence, so that it is really like liability for an act of damage, for the action itself? Or do you understand it as responsibility for the fact that your property caused damage—you are responsible for that? Do you see that in the second formulation, where we are talking about liabilities of responsibility, one can definitely say that if these are liabilities of responsibility, then perhaps one does not need a connection between the negligence and the unavoidable event, or that “it began with theft or loss and ended in an unavoidable event” would be exempt. In any case, it may already be different from the laws of bailees. So this issue may depend on the famous conceptual inquiry about liability for property damage. That is a comment we will return to.
What I want, if you have time for next time, is for you to go back to our passage on 56a. There is a discussion there about “it began in negligence and ended in an unavoidable event,” and try to read it in light of the Talmud, in light of what we have seen until now: “it began with theft or loss,” is there a connection between the negligence and the unavoidable event, is there no connection between the negligence and the unavoidable event. And if you have time, you can also look at the passage on page 52 about covering a pit—if camels fell in, if oxen fell into it, what is the law in those different cases. There too interesting conclusions come up regarding “it began in negligence and ended in an unavoidable event” in tort law. So 56 and 52. Okay. That is it. Questions or comments? Good.