Tractate Shabbat, Chapter 1 – Lesson 16

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[Rabbi Michael Abraham] So then he certainly needs prior warning.

[Speaker K] If we're talking about a chaver who does the transgression unintentionally, not deliberately, then he certainly needs prior warning.

[Rabbi Michael Abraham] But he isn't unintentional, because he's a chaver, he's a Torah scholar.

[Speaker K] Yes, but a moment ago we said there is a possibility that he could be mistaken about the facts—that it's Wednesday and not the Sabbath.

[Rabbi Michael Abraham] But if he's mistaken about the facts, then that's not the dispute. Again, the dispute in the Talmud—everyone agrees that you have to make sure the person acted deliberately, that's obvious, okay? Therefore, as far as knowledge of the facts is concerned, clearly that's required even for a chaver; that wasn't the dispute. So what are the Tannaim arguing about? They're arguing only about halakhic warning, not factual warning, right? Because regarding the facts it's obvious that you need to make sure the person acted deliberately; that has nothing to do with whether he's a chaver or not. So what, then, is the dispute between the Tannaim here? What could they be arguing about? Only halakhic warning, right? And in that dispute the Talmud says that Rabbi Yosi bar Rabbi Yehuda says you don't need to warn him with halakhic warning, because prior warning was given only to distinguish between unintentional and deliberate action. And from that, what can I understand about the view of the Rabbis? That they apparently say that even a chaver needs halakhic warning, not only warning—

[Speaker K] But the factual one—wait, I have a prior question. The fact that we don't have, we don't have a distinction between unintentional and deliberate—here, I think, that's the question, right? Where do I distinguish between unintentional and deliberate? I didn't understand. I'm saying, earlier it was said here that Maimonides says that both a Torah scholar and a chaver and an am ha'aretz—that is, an ignoramus—all create a problem in distinguishing between unintentional and deliberate.

[Rabbi Michael Abraham] Okay, so I'm asking: how is it ruled in the Talmud?

[Speaker G] Maybe he'll regret it? Maybe if they warn him, he'll regret it, and then that will affect whether he's unintentional or deliberate.

[Speaker A] He rules like whom? But with the same explanation that Abaye brought for Yosi, right?

[Rabbi Michael Abraham] I didn't understand—so he rules like whom? Like Rabbi Yosi bar Rabbi Yehuda or like the Rabbis? Like the Rabbis. Like the Rabbis. And then what does he say? What do the Rabbis say? That halakhic warning is also required, not only factual warning. Because factual warning even Rabbi Yosi bar Rabbi Yehuda agrees to.

[Speaker K] Yes, but I'm asking a different question, but okay. I'm saying: where is our distinction between unintentional and deliberate if I have no halakhic warning for a chaver?

[Rabbi Michael Abraham] You don't need a distinction. A chaver is always deliberate. That's it. Okay.

[Speaker K] So why does he need warning if he's always deliberate?

[Speaker D] That's Rabbi Yosi; that's what Rabbi Yosi says.

[Rabbi Michael Abraham] That's exactly, exactly what I'm asking.

[Speaker D] Exactly. But still—after all, he'll be liable to death, right? What? If he commits a transgression for which one is liable to death, he'll be liable to death. So why not try to deter him? Even if our assumption is that he knows?

[Rabbi Michael Abraham] Even though he was warned.

[Speaker G] If we connect this to…

[Speaker D] Wait.

[Rabbi Michael Abraham] Wait, again, Ruti?

[Speaker D] I'm saying that even so, if we warn him, maybe he'll withdraw his hand from that transgression and won't commit it, even though he knows and wanted to and…

[Rabbi Michael Abraham] That's a very nice reasoning. I'm asking how it fits with the Talmud, not what your reasoning is.

[Speaker D] No, because Rashi—because Maimonides says: perhaps he was unintentional.

[Rabbi Michael Abraham] Fine, perhaps—but—

[Speaker D] That's not the wording of Rabbi Yosi ben Yehuda, bar Yehuda.

[Rabbi Michael Abraham] But again, Ruti, I'm asking how Maimonides fits with the Talmud, not what the understanding in Maimonides is. I understand the understanding in Maimonides too. I'm asking how Maimonides fits the Talmud. In the Talmud there's a dispute between Rabbi Yosi bar Rabbi Yehuda and the Rabbis whether a chaver needs warning or not. Now I'm asking: what kind of warning are we talking about—factual warning or halakhic warning?

[Speaker E] Maybe the unintentional one—

[Rabbi Michael Abraham] We explained, though, that even within deliberate there are distinctions.

[Speaker D] Wait, wait, let me respond for a second.

[Rabbi Michael Abraham] Also halakhically. Halakhically, right? Meaning that according to Rabbi Yosi bar Rabbi Yehuda, halakhic warning is not required for a chaver, and according to the Rabbis it is. And the Talmud says that Rabbi Yosi bar Rabbi Yehuda's reason is that prior warning was given only to distinguish between unintentional and deliberate. Right? Meaning that the chaver is of course deliberate. He doesn't need halakhic warning; he does need factual warning, but not halakhic warning. And therefore, therefore, you don't need to warn him. The Rabbis, who disagree with Rabbi Yosi bar Rabbi Yehuda and do require halakhic warning even for a chaver, then apparently they have some other explanation, no? That warning has some other purpose, not distinguishing between unintentional and deliberate. Now Maimonides, on the one hand, rules like the Rabbis, and on the other hand brings Rabbi Yosi bar Rabbi Yehuda's reasoning.

[Speaker D] But maybe the distinction between unintentional and deliberate is also for the religious court, so they know how to distinguish whether he did it…

[Rabbi Michael Abraham] But I'm saying again, obviously we're talking about the religious court. That's all we're talking about—who else would it be?

[Speaker D] No, the warning can be for the sinner's sake, of course, but it can also be for the court's distinction.

[Rabbi Michael Abraham] Understood. We're discussing this only in relation to the court; we're discussing it as a condition for punishment. So in order for the court to punish, it has to make sure the offender acted deliberately.

[Speaker G] But in the passage we learned, about someone sticking bread to the oven wall, there too there is a possibility of undoing deliberateness. Meaning even if he stuck it on and it was deliberate, then if he… there too there were ways to find, so to speak, how to undo the deliberate status so that he wouldn't be…

[Rabbi Michael Abraham] That will get us into the question of uncertain warning. We haven't gotten there yet. Right now I'm talking about ordinary warning, before uncertain warning. I know that this is pork, and I warned him and he eats pork—that's it, there's nothing further missing for him to become liable. Okay?

[Speaker K] Wait, another question: if it's not a distinction between unintentional and deliberate, is it a distinction between the transgression and the punishment?

[Rabbi Michael Abraham] Again?

[Speaker K] If it's not a distinction between unintentional and deliberate for a Torah scholar, is it a distinction, like we said earlier, between the transgression and the punishment?

[Rabbi Michael Abraham] I have no idea, I don't know. I'm asking: according to the Rabbis, for whom warning is required for a chaver—sorry, yes, warning is required for a chaver—apparently the purpose is… And Maimonides, when he rules like the Rabbis, brings the reasoning of Rabbi Yosi bar Rabbi Yehuda.

[Speaker L] It now seems that in Maimonides maybe the purpose is—maybe the purpose is to make sure he is doing it knowingly. Meaning, having halakhic knowledge or knowledge of the facts is one thing, but doing it knowingly and intentionally, and that is what makes him deliberate.

[Rabbi Michael Abraham] And that's unrelated to factual warning; there's no dispute about that. Rabbi Yosi bar Rabbi Yehuda agrees to that too.

[Speaker L] Why is that factual?

[Rabbi Michael Abraham] Rabbi Yosi bar Rabbi Yehuda doesn't agree that I need to warn a Torah scholar to make sure he's aware? Of course he does. Otherwise how could you punish him?

[Speaker G] Ah, but part of it is that he also has to say, “I know, and nevertheless I am doing it,” so he doesn't say that. Why not?

[Rabbi Michael Abraham] He does say it—what do you mean? If he didn't say it, then he's not liable to death.

[Speaker G] So he says that only after I warned him, so yes, you do have to warn him.

[Rabbi Michael Abraham] Only after the warning—that's the procedure. I warn him, and then he says, “Yes, and on that condition I am doing it.”

[Speaker G] Ah, but that's not in order to distinguish, I get it.

[Rabbi Michael Abraham] So I'm saying again: in Maimonides it seems that as far as he's concerned, both the Rabbis and Rabbi Yosi bar Rabbi Yehuda view warning as a means of distinguishing between unintentional and deliberate. That's not their dispute.

[Speaker G] So what is?

[Rabbi Michael Abraham] It may be that their dispute is the following. According to Rabbi Yosi bar Rabbi Yehuda, the assumption is that a chaver is deliberate. I'm talking about halakhic warning only, only halakhic warning. A chaver is deliberate because he knows the Jewish law. The Rabbis also think warning is meant to distinguish between unintentional and deliberate, but even with a Torah scholar, who knows—maybe for a moment he overlooked the law, maybe by chance he never learned this particular passage. There is some remote concern that he doesn't know the law either, not only the facts. Therefore the Rabbis say: in order to execute someone, we have to eliminate every doubt, however remote, and therefore you have to warn even a chaver. And then it comes out that both Rabbi Yosi bar Rabbi Yehuda and the Rabbis hold that warning was given to distinguish between unintentional and deliberate. Their dispute is over the question of what level of deliberateness is required in order to punish someone. According to Rabbi Yosi bar Rabbi Yehuda, it's enough for me to estimate that if he's a Torah scholar he probably knows; that's all. That's enough to make him, in my eyes, deliberate and liable to death. The Rabbis say, listen, a death sentence is not a simple matter. A death sentence is something where you have to be beyond any doubt. Therefore even if he is a famous Torah scholar and knows the entire Torah, go check—maybe he forgot the prohibited labor of sorting, he didn't know. All the other prohibited labors and their derivatives he remembers, but this one specifically, in this particular passage, he wasn't at the class or he forgot, I don't know, something happened. In order to kill someone, even if he's a Torah scholar, you must warn him. And then it comes out that their dispute really does not touch the purpose of warning. They both agree that the purpose of warning is to ensure that you are deliberate and not unintentional. Their dispute is over what level of deliberateness is required, or what probability that he is deliberate is required, in order to punish him. According to the Rabbis, you need a hundred percent probability. According to Rabbi Yosi bar Rabbi Yehuda, ninety percent is enough. That's really the dispute. That's what we have to say according to Maimonides; otherwise it's hard to understand. Okay, but when he—

[Speaker D] If he answers them after the warning, “Yes, and on that condition I do it,” that means he's a person who knows. So? Yoav, then even an ignoramus who says that is a person who didn't know?

[Rabbi Michael Abraham] He is a person who didn't know, because now, once they tell—

[Speaker D] him—no, he says, “Yes, and on that condition I do it.”

[Rabbi Michael Abraham] Right, but only after they told him does he know. They told him that this is a transgression carrying the death penalty, and he says, “I understand, and still this is what I'm going to do.”

[Speaker E] I think I understand. It depends—I understood that unintentional and deliberate—actually warning has two purposes: one, to prevent him from doing the transgression, and the second is to punish. So if we go with the side of preventing the transgression, then distinguishing between unintentional and deliberate means that the person himself knows whether he is unintentional or deliberate. But in order for us to punish, we need to make sure he really was deliberate.

[Rabbi Michael Abraham] We are interested only in the second side. We are not discussing the first side. Here we are discussing warning as a condition for punishment—that is, what kind of warning is required so that the religious court can punish him. Therefore for our purposes it's obvious that we're speaking only about the second aspect. You're right, as I said at the beginning, that the basic purpose of warning is not to enable the court to kill him; the purpose of warning is to try to deter him so that he won't commit the transgression. But from the standpoint of the halakhic discussion here, in the laws of religious courts and punishments and so on, the aspect that interests us is whether we can be convinced that he was deliberate and punish him. That's the legal discussion of warning. The obligation of “You shall surely rebuke your fellow” and trying to keep him from committing transgressions is certainly true, but that's not our topic here. Our topic here is warning as a condition for the court's ability to punish him. What has to be in place in order for the court to punish him? Okay?

[Speaker B] The question is, could it be that this depends on the severity of the punishment, actually on the severity of the transgression? That if the transgression is very severe, then it's sort of obvious that…

[Rabbi Michael Abraham] I haven't found—

[Speaker B] a place where it says there is a difference between stoning, which is a severe transgression—

[Rabbi Michael Abraham] And I haven't found anyone who says such a thing. In principle one could have said it, but I haven't found it. The statement is a general one.

[Speaker B] Okay.

[Speaker E] Let's look at the laws of forbidden relations—

[Rabbi Michael Abraham] the next Maimonides passage written here. Look.

[Speaker E] Doesn't warning—wait, I have one more question. Isn't there something in warning that causes the person really to do it—after all, even within deliberate action there is also the idea of doing it provocatively. Once a person transgresses deliberately and they didn't warn him and fine, then he did it out of all kinds of interests. But when they tell him how severe it is and what a great punishment it carries, and nevertheless two people tell him this and he still commits the transgression, then it sort of raises the level of deliberateness to a higher level.

[Rabbi Michael Abraham] A transgression done out of interests is a completely deliberate transgression; there is no deficiency at all in such a transgression.

[Speaker E] Yes, but in order for us, the court, to kill him, maybe an additional reason is needed. And when a person does it while knowing all the severity and how severe it is—

[Rabbi Michael Abraham] A deliberate person who acts because of an interest, or because he's angry, or for all sorts of other reasons—he's not doing it to provoke. A person who wants to kill someone who upset him, and now I tell him, listen, if you kill him you're liable to death by the sword in court, and he says, “I don't care—

[Speaker E] I'm going to kill him and that's it,” he's not doing it to annoy me. But that's even more severe. No, he's not doing it to annoy me.

[Rabbi Michael Abraham] He's doing it because he's angry at him. So what difference does it make whether I warned him or not?

[Speaker E] Only in the question of how deliberate he is, that's all. But we ourselves said that a person who does such a thing despite being warned—

[Rabbi Michael Abraham] then he's at some kind of level—as if, a level of deliberateness that's already irrational, right? And therefore, therefore, such a person, ostensibly, if we don't take him to a psychiatrist, then he's liable to death because he's on a very, very severe level compared to a person who wasn't warned. Exactly.

[Speaker E] That's a reason to be lenient, not stringent. If he does such crazy things, then that means he isn't really aware and doesn't care about the consequences. I said let's not take him to a psychiatrist; let's assume he is aware, but he is aware on a very severe level.

[Rabbi Michael Abraham] Not on a severe level; he's simply very, very angry at the other person and therefore wants to kill him.

[Speaker E] And nobody manages to calm him down, so that means he's really not in—

[Rabbi Michael Abraham] It means nobody manages to calm him down. What, you don't know such phenomena? I don't know, I once saw two people get out of their cars in the middle of the road and start fighting with each other; one of them almost pulled out a knife. And someone told him, listen, you're going to get into serious trouble, if you hurt him you'll go to prison for the rest of your life. He didn't care about anything; I had to stop him by force.

[Speaker E] And therefore such a person ought to go to prison for the rest of his life.

[Rabbi Michael Abraham] No problem—that's for protection. But as punishment, that's a reason to be lenient, not a reason to be stringent. Look, in the laws of forbidden relations Maimonides writes: even if the transgressor was a Torah scholar, he is not executed and not flogged—you see? Not only with regard to death, also with regard to lashes—until there is warning there. And once again the reason: warning was given everywhere only to distinguish between unintentional and deliberate. Meaning, this is said both about death and about lashes; there is no difference at all. Okay, regarding heavenly punishments we spoke—I see this is taking me a long time and I need to start moving. Okay, last point: the acceptance of warning in the Tosefta in Sanhedrin chapter 11; that's the source for this matter. The Tosefta writes: “And the rest who are liable to death penalties of the court are not made liable except on the basis of witnesses and warning, and only once they inform him that he is liable to death by the court. Rabbi Yosi bar Rabbi Yehuda says: until they inform him by which death he dies. Whether all his witnesses warned him or whether some of his witnesses warned him, he is liable,” and so on. “If they warn him and he is silent, if they warn him and he nods his head, even if he says, ‘I know,’ he is exempt, until he says, ‘I know, and on that condition I am doing it.’” That's the law of accepting warning. Same thing in, “How so, one who was fit and desecrated the Sabbath”—because “ki zeh side” means “how so,” right?—“One who desecrates the Sabbath, they say to him: know that it is the Sabbath, and it is said, ‘Those who desecrate it shall surely be put to death.’ Even if he said, ‘I know,’ he is exempt, until he says, ‘I know, and on that condition I am doing it.’” The same thing: “One who killed a person, they say to him: know that he is a member of the covenant, and it is said, ‘Whoever sheds the blood of man, by man shall his blood be shed.’” And it's very interesting, by the way, because that verse actually speaks about killing a Noahide, not a member of the covenant.

[Speaker D] Right, so maybe “member of the covenant” here could be a Noahide?

[Rabbi Michael Abraham] What? I can't hear.

[Speaker D] Could “member of the covenant” here mean a Noahide?

[Rabbi Michael Abraham] No, no. “Member of the covenant” means a Jew.

[Speaker H] The sentence isn't very clear: on the one hand it's about a Noahide, and on the other hand it says “member of the covenant.”

[Rabbi Michael Abraham] No, it's not about a Noahide; it's about a Jew, a member of the covenant.

[Speaker D] But a Noahide who murdered is liable, right?

[Rabbi Michael Abraham] That's under their legal system; it's unrelated. But if a Jew killed a Noahide, under our law he is not liable to death.

[Speaker E] Why does he have to say, “On that condition I am doing it”? Where do we learn that from?

[Rabbi Michael Abraham] That's how they understand it; I don't know. There has to be some threshold that is the highest indicator of deliberateness, right? Clearly in such a situation you can rest easy that he is definitely a first-rate deliberate transgressor. Okay? Good. Now the next stage is uncertain warning. Until now we have spoken about warning in general. In the Talmud in Makkot on pages 15–16 there's a long passage dealing with uncertain warning. I brought you only one example so it would be easy for you to understand, because the rest—whether he nullified or did not nullify, fulfilled or did not fulfill—that's a complicated passage. So the Talmud says there: “It was stated: if one swore, ‘I will eat this loaf today,’ and the day passed and he did not eat it—Rabbi Yoḥanan and Reish Lakish both said: he is not flogged.” Yes, someone who says, “I will eat this loaf of bread today,” the whole day passes and he doesn't eat the loaf, then he has transgressed the prohibition of an oath, “he shall not violate his word,” and he should receive lashes. Rabbi Yoḥanan and Reish Lakish say they both agree he is not flogged, but the reasons are different. Rabbi Yoḥanan said he is not flogged because it is a prohibition involving no action. Yes, he didn't eat, he performed no action, and for any prohibition involving no action, one is not flogged for it. Reish Lakish says a different reason: he is not flogged because it is uncertain warning, and any uncertain warning is not considered warning. Meaning, there is uncertain warning here. Why? Because every time I warn him and say, listen, if you don't eat this you will be flogged—who knows, maybe in another five minutes he'll eat it? So you can never be certain that this warning will actually end in lashes. Therefore this is uncertain warning; who knows, maybe in the end he will eat it, maybe he won't. And the medieval authorities add here that you can't time the day to the very last second so that I warn him when there is no time left to eat; that is impossible to calculate exactly. Therefore it's called uncertain warning. So Reish Lakish says he is not flogged because this is uncertain warning; Rabbi Yoḥanan needs another reason—that it's a prohibition involving no action. Why does he need another reason? Because he apparently holds that uncertain warning is considered warning. Therefore he needs another rationale. So this is a dispute between Rabbi Yoḥanan and Reish Lakish: Rabbi Yoḥanan says uncertain warning is warning, and Reish Lakish says uncertain warning is not warning. As a matter of Jewish law, by the way, very interestingly, Maimonides rules like Rabbi Yoḥanan, that uncertain warning is warning. Now this is not only Maimonides; it's this Maimonides that I brought here, chapter 16: “A person is flogged only with witnesses and warning,” and so on, “and even though the warning is uncertain, for if he fulfills it he will be exempt, uncertain warning is warning.” Meaning, he rules like Rabbi Yoḥanan. Now, in general, the rule is that in a dispute between Rabbi Yoḥanan and Reish Lakish, we rule like Rabbi Yoḥanan. This isn't just Maimonides' whim; these are the general rules of halakhic ruling. Meaning that straightforwardly, as Jewish law, uncertain warning is warning. Why am I saying this? Because until now I can't manage to understand this point: how can it be that throughout the whole Talmud, and among the medieval and later authorities, they constantly raise difficulties in all kinds of passages—wait, but this is uncertain warning, so why do we flog him, or why do we kill him? Now here Maimonides rules—and that is apparently the law—that uncertain warning is warning, so what are all these difficulties? Why are there difficulties here? Uncertain warning is warning.

[Speaker D] So why is Reish Lakish written last? What? Usually the one written last—isn't the ruling according to him?

[Rabbi Michael Abraham] No, here—

[Speaker D] Rabbi Yoḥanan is written before Reish Lakish.

[Rabbi Michael Abraham] No, there is no such rule.

[Speaker E] Maybe because there are different kinds of uncertain warning?

[Rabbi Michael Abraham] Maybe, but—but—but when they raise a question like this, like Tosafot does in our passage, yes?—when they ask such a question, I would expect them to say, “I have a difficulty according to Reish Lakish.” They say nothing of the kind. They just say: it's uncertain warning, so how can you punish him? Meaning, how can I punish him when there is uncertain warning, given that uncertain warning is warning—what's the problem?

[Speaker E] Because there are kinds of uncertain warning—on this kind you punish him, but maybe there are other kinds of uncertain warning that Rabbi Yoḥanan and Reish Lakish think about differently.

[Rabbi Michael Abraham] That's what I say—that's a possible answer. But then I would expect Tosafot, when he asks this question, to say: true, we hold like Rabbi Yoḥanan that uncertain warning is warning, but here this is a different case, and here uncertain warning should not count as warning, and therefore I have a difficulty. But Tosafot doesn't say all that. Tosafot says: wait, but this is uncertain warning. As if it's obvious to any sensible person that if this is uncertain warning then you don't execute. But why on earth? After all, as Jewish law we rule like Rabbi Yoḥanan that uncertain warning is indeed warning. There is something problematic here.

[Speaker E] Which Tosafot are you talking about—the previous opening words?

[Rabbi Michael Abraham] Yes, on “sticking bread in the oven.”

[Speaker E] But there he actually explains that this uncertain warning is a bit different because he stuck the bread on—there was an action here.

[Rabbi Michael Abraham] But—

[Speaker H] The whole question is, why does he need to explain?

[Rabbi Michael Abraham] Exactly—why does he need to explain? I understand that's his answer. I'm asking about the question. In the question he says this is uncertain warning; afterward he answers this. That's his answer—I am asking about the question. In the question he says: this is uncertain warning. Afterward he answers: this is not called uncertain warning. I say, what do you mean? And if it is called uncertain warning, do you have a problem with that? Even if it is called uncertain warning, after all we punish. So what's the difficulty? Why are explanations needed? So again, I asked a friend of mine as well; I don't have a good answer. It's not clear to me. Regarding our Tosafot maybe I can understand, because Tosafot asks: after all, this is uncertain warning, and therefore the Talmud should have made it depend on the dispute between Rabbi Yoḥanan and Reish Lakish. From the fact that the Talmud does not make it depend on the dispute between Rabbi Yoḥanan and Reish Lakish, it seems the Talmud understands that this is not uncertain warning. And the question is why. Maybe that is how one can understand Tosafot's question in our passage. Meaning, true, as Jewish law there is no difficulty, because as Jewish law we rule like Rabbi Yoḥanan. But Tosafot says: in the Talmud itself they should have said that this whole business—that he is liable to stoning—is only according to Rabbi Yoḥanan, who holds that uncertain warning is warning. According to Reish Lakish, no. The Talmud does not say that. So it seems that the Talmud apparently understands that it doesn't matter whether it's Rabbi Yoḥanan or Reish Lakish. Why? Because we're not dealing with uncertain warning; this is—

[Speaker A] certain warning.

[Rabbi Michael Abraham] And on that Tosafot asks: why? After all, ostensibly this is uncertain warning. Okay? So that's about uncertain warning. Now let's really look at Tosafot. “And if you would say,” Tosafot in our passage, “how can he come to liability for stoning, seeing that this is uncertain warning? For at the time he stuck the bread to the oven wall, perhaps he intended to remove it before he came to the prohibition carrying stoning. And if he did not remove it, perhaps he forgot or was prevented.” Okay? Tosafot says: after all, in our Talmudic passage it implies that the person will be liable to stoning if he does not remove the bread. Tosafot asks: even if he was deliberate, how do you make him liable to stoning, since this is uncertain warning? Why? Since at the time he stuck the bread to the oven wall, you warned him before he stuck it on, and you told him: know that you are about to stick bread to the oven wall and you may become liable to stoning for this. So he thinks to himself: yes, but I intend to remove it afterward, so there's no problem. So in fact it is not yet clear that he has incurred stoning for this. Such a case is called uncertain warning. So Tosafot says: then why does our Talmudic passage say he is punished? This is uncertain warning. And again, as I said before, ostensibly according to Jewish law this shouldn't be difficult, because according to Rabbi Yoḥanan, even if it is uncertain warning, uncertain warning is warning. But maybe Tosafot is asking: yes, but the Talmud should have said that this is only according to Rabbi Yoḥanan and not according to Reish Lakish. From the fact that the Talmud does not make it depend on the dispute between Rabbi Yoḥanan and Reish Lakish, it seems the Talmud understood that this is not uncertain warning; this is certain warning. And on that Tosafot asks why, since ostensibly this is uncertain warning. Okay?

[Speaker E] I want to ask something about this too, sorry. Okay. If the warning is such that the person says, “I know this is wrong and I know I'm going to be punished,” then how can he later come and say, “No, I was actually planning to take it out”? After all, part of the warning is to make sure that he really isn't planning to do anything else, but rather to complete the whole transgression.

[Rabbi Michael Abraham] I'll talk about that in a little while, but since you already asked I'll answer here. That's a very good question, and in principle you can see from here that without acceptance of warning he isn't liable to death at all. So when we're talking about certain warning, there was certainly also acceptance of warning—that is, the person said, “Yes, and on that condition I am doing it.” And if so, then what is the question whether he intended to remove it or not? He says, “On that condition I am doing it.” No, because it could be that when he says, “On that condition I am doing it,” he means: yes, yes, I know there is liability to stoning for this, and nevertheless I am doing it. He isn't going into enough detail to tell me that afterward he plans to remove it. That's the calculation he's making with himself. Later, when he removes it, then of course he will be exempt. He is only saying to them: don't expect stories from me, I'm a Torah scholar, I know the laws. I am doing this with full knowledge. That's all. He didn't tell them what his plans are; he didn't tell them, “Look, I am going to become liable to stoning.” He only tells them, “What you are telling me, I know, and on that condition I am doing it.” That's all.

[Speaker D] Maybe—maybe he also had that plan, but then he changed his mind afterward? I didn't understand. It could be that when he said it at the time of the warning, he really intended to go through with it, but afterward he regretted it after he stuck it on.

[Rabbi Michael Abraham] We'll see in a moment, we'll see in a moment.

[Speaker E] But that's also what Tosafot writes. After all, when Tosafot raises this difficulty he also writes that here there is certainty, that the action will certainly be done, right? He writes—and that's exactly the point, that he accepts the warning.

[Rabbi Michael Abraham] One second, one second, one second. Don't mix the answer in with the question. Get used to that: don't mix the answer into the question. Each stage has to be understood on its own terms, and afterward we can see what is new in the answer. It's very important to make these distinctions, because otherwise everything gets mixed together for us. First of all we have to understand how Tosafot learned at the stage of the question; afterward we'll see what was added in the answer. At the stage of the question, Tosafot assumed that even if the person says, “Yes, and on that condition I am doing it,” that still doesn't mean he intends to be stoned. He is only telling them: you're not teaching me new laws; I know these laws. I know them. I know. And I am doing the act despite knowing the laws. Internally, he is planning to remove it, and then there is no problem at all. But he doesn't need to tell them what his plans are. He only needs to tell them that he is aware of the laws they are presenting to him. That's all. That's first point. Second point: Tosafot bases his question on the fact that when he stuck the bread on, he intended to remove it, and only afterward maybe he forgot. What if he didn't intend to remove it? He intended not to remove it. From the outset he intended to do an act carrying stoning. Okay?

[Speaker E] So the question is how to define it—according to the Rashash or the Minḥat Ḥinukh?

[Rabbi Michael Abraham] Ah, so let's see. Meaning, if he intended not to remove it but in the end he did remove it? He intended from the outset to commit the prohibition and be stoned, and afterward he removed it? Okay? What happens according to the Minḥat Ḥinukh?

[Speaker E] And according to—

[Speaker D] the Rashash he is—

[Rabbi Michael Abraham] liable?

[Speaker E] What? According to the Rashash he is liable, and according to—

[Speaker D] the Minḥat Ḥinukh exempt?

[Rabbi Michael Abraham] Why is he liable? He removed it.

[Speaker E] According to the Minḥat Ḥinukh he is liable.

[Rabbi Michael Abraham] Why? He removed it.

[Speaker E] But according to the Rashash he… sorry, sorry.

[Rabbi Michael Abraham] According to the Minḥat Ḥinukh, he intended not to remove it, but afterward in practice he did remove it?

[Speaker D] The Minḥat Ḥinukh—no… not liable. According to the Rashash he is liable. According to the Minḥat Ḥinukh the act of baking was not completed.

[Rabbi Michael Abraham] According to nobody is he liable. According to nobody is he liable. After all, there is a condition—this is both according to the Minḥat Ḥinukh and according to the Rashash—the bread has to bake. The question is whether the condition is part of the definition of the prohibited labor. But if the bread did not bake, then even if I intended to bake it, that's not enough. The bread has to bake. So now I'm asking: why doesn't Tosafot take into account the possibility that perhaps he intended not to remove it? Okay? That is, it sounds from Tosafot that if he intended not to remove it, yes? and afterward he did remove it, he became liable. That's apparently what it sounds like. Because otherwise why does he need to say, “perhaps he intended to remove it”? It could be that the fact that he didn't remove it was perhaps because he forgot or I don't know what happened. But the original intention isn't important. His original intention was not to remove it. So what difference does it make? In the end, if I removed it, then I'll be exempt. The fact that I didn't remove it may be because I forgot. So that is still uncertain warning. Suppose I intend—let's formulate it this way. Suppose that from the outset, when I stick the bread to the oven wall, I intend not to remove it. Okay? Now they warned me before I stuck it on. Is that certain warning? My answer is no. Why? Because maybe in another five minutes he will change his mind and remove it, and then he won't come to stoning. Meaning, the act he did is not yet clearly a prohibited act. The fact that he intended to do a prohibited act—so what? But the act in itself is not necessarily a prohibited act, because if he removes it he won't come to the prohibition of stoning. Why is such a thing not called uncertain warning? That's what I'm asking. Why, in order to explain that this is uncertain warning, does Tosafot have to explain that we're dealing with a situation where he intended to remove it? Even if he didn't intend to remove it, it's uncertain warning. Because even if he didn't intend to remove it, he could change his mind afterward and remove it. So this is uncertain warning.

[Speaker D] But maybe… maybe like Rabbenu Tam says. What? That if usually, if he intended and this and that, then he—

[Rabbi Michael Abraham] I didn't understand.

[Speaker D] No, in the end you sent us to some passage where Rabbenu Tam in Gittin—

[Rabbi Michael Abraham] Wait, wait, wait, let's not go overboard here. Look, the point is this. If we say that the person intends to remove it—no, not remove it, sorry—he intended to carry the prohibition all the way to stoning. When he stuck the bread to the oven wall, that was his intention, and they warned him, everything is fine. Ten minutes later he changed his mind and removed the bread before it baked. Clearly he isn't liable to stoning, right? Because the condition wasn't fulfilled; the bread didn't bake. But if he left the bread there, what's the law? Liable. Liable to stoning, right? Why? Because the bread baked and they warned him, and this also—and this also baked. Everything happened, and there was warning, and everything is fine. Meaning that in fact the whole discussion of uncertain warning is talking about a situation where in the end the bread was not removed. Right? Because if in the end the bread was removed, you don't need to discuss whether this is uncertain warning or not. He simply isn't liable because the bread didn't bake. The discussion of uncertain warning speaks only about a case where the person did not remove the bread, and then in principle I want to make him liable to stoning. Now Tosafot asks: wait, wait, wait, but there was uncertain warning here, so even though the bread baked, in fact you can't stone him, right? That's what Tosafot—

[Speaker D] But maybe… maybe he regretted it, and because the Sages prohibited—

[Rabbi Michael Abraham] No, no, no, the Sages haven't prohibited anything yet. I'm not talking about a rabbinic prohibition. At the moment I'm talking about the core issue itself. So now, the point is this. If indeed the person originally intended to leave the bread there and not remove it, and in the end he also really didn't remove it—right? Because otherwise the question wouldn't arise whether to stone him or not, right? If in the end he removed it, then there is no question. So what are we talking about? A situation where he intended not to remove it, and indeed in the end he didn't remove it.

[Speaker E] And I'm asking, what's the difference between that and the oath?

[Rabbi Michael Abraham] Wait. Even in that case I still won't stone him, because maybe this is uncertain warning. Why? Because after all he could have changed his mind, right? In the end he didn't change his mind, but he could have changed his mind and removed it, so—

[Speaker D] At the time of the warning it's not—

[Rabbi Michael Abraham] it wasn't clear that he would reach liability for stoning. That was my question, right? Why shouldn't that be considered uncertain warning? Are you with me?

[Speaker E] Yes, it's like with food—someone who swore to eat bread by the end of the day. It's possible that in the end he will eat it; we don't know.

[Rabbi Michael Abraham] Exactly. Therefore it is uncertain warning.

[Speaker E] He may remove it, he may not remove it; we don't know.

[Rabbi Michael Abraham] Exactly, that's exactly what I'm saying. So if so, my question on Tosafot works like this: why does Tosafot say, “perhaps he intended to remove it”? I say: even if he intended not to remove it, and in the end he really also didn't remove it, and the bread baked, and now he's brought to court and the court ostensibly has to judge him to stoning—as it says in the Talmud. About that too, Tosafot seemingly should have asked: how can you stone him? After all, this is uncertain warning. Why? Because at the moment he stuck the bread on, and then you warned him, it still could have been that he would change his mind. Right? In practice he didn't change his mind, but at that moment you didn't know that. He could have changed his mind. So if so, this is uncertain warning even if he did not intend to remove it. Why does Tosafot ask the question only on the side where he did intend to remove it?

[Speaker E] He takes into account that this isn't uncertain warning—

[Rabbi Michael Abraham] because of his intentions.

[Speaker E] What? That if he didn't intend to remove it, then this isn't called—

[Rabbi Michael Abraham] uncertain warning; it's real warning. Why? He gives two answers to that afterward. No, no, no—the answers respond to his question. I'm asking what the answer is to my question. I asked: why, when he didn't intend to remove it, is that not uncertain warning? Tosafot asked: if he did intend to remove it, that's uncertain warning.

[Speaker E] Because Tosafot assumes it's not warning—it's full warning if he had intended, if he had left it there.

[Rabbi Michael Abraham] Obviously. I'm asking why.

[Speaker E] Why does he assume that?

[Speaker A] How can you judge him?

[Speaker E] Because afterward he brings the answer.

[Rabbi Michael Abraham] No, the answers are answers to the question he asked. But I am asking a different question.

[Speaker A] What is Tosafot's assumption? What's his basic assumption?

[Rabbi Michael Abraham] I'm asking what happens when he did not intend to remove it. Ostensibly even in such a situation you cannot stone him, because still at the stage of sticking it on there are two possibilities: either he will remove it or he won't remove it; he can change his mind and remove it. So you cannot be sure he's heading toward liability for stoning, and therefore at the stage of warning this is uncertain warning even if he didn't intend to remove it.

[Speaker E] Because apparently he has something in the definition of the prohibited labor of baking whereby he defines it in such a way that the warning isn't called uncertain warning.

[Rabbi Michael Abraham] That already assumes it's something in the definition of the prohibited labor of baking; we'll see in a moment.

[Speaker E] Or maybe he would also determine—after all, there is a dispute about it—if someone swore to eat bread, then maybe, maybe we also saw later, maybe that's not uncertain warning.

[Rabbi Michael Abraham] I didn't understand.

[Speaker E] Also with someone who swore to eat bread, you can ask whether it's uncertain warning or not. Someone who swore to eat?

[Rabbi Michael Abraham] Someone who swore to eat and didn't eat. Indeed, correct, that is uncertain warning, what do you mean?

[Speaker A] So maybe he assumes like the Rashash.

[Rabbi Michael Abraham] Just as the Talmud says that this is uncertain warning, and therefore Rabbi Yoḥanan and Reish Lakish disagreed about it. It really is uncertain warning, exactly.

[Speaker A] Maybe Tosafot assumes like the Rashash, that once he stuck it on and did not intend to remove it, from that moment he already becomes liable, and then our warning is full warning?

[Rabbi Michael Abraham] Okay, so let me try—

[Speaker E] And that's what he answers in the end.

[Rabbi Michael Abraham] You jump straight to the Rashash and the Minchat Chinukh; I still want to say something before that. It could be that what Tosafot says is the following claim. If the person intended not to remove it, okay? And in the end he also did not actually remove it, then this is a definite warning, not an uncertain warning. Why? The possibility that he might change his mind and remove it does not turn the warning into an uncertain warning. Because if from the outset he intended not to remove it, and in the end he in fact did not remove it, that means he apparently was not going to remove it unless proven otherwise. If he actually removes it, then he is exempt, but if he—so long as he does not remove it—then clearly he will go all the way to stoning. Therefore Tosafot says: on that side of the case, this is a definite warning; it is not an uncertain warning.

[Speaker E] So does that mean that an uncertain warning can only be checked in practice, only afterward, to see whether it was an uncertain warning or not? Meaning, if in the end he did not remove it, then I’ll know that it was a definite warning? No, it depends, depends.

[Rabbi Michael Abraham] It depends on what he had in mind from the outset. If from the outset he intended not to remove it, then this is not an uncertain warning. Except what? If he actually did remove it, then he is exempt—not because of uncertain warning; he is exempt because he simply did not commit the prohibition. And if he did not actually remove it, then he would be liable to stoning, and the warning is a definite warning, not— But if from the outset he intended to remove it, and that’s Tosafot’s question, then even if in the end he did not remove it, and seemingly I should have to sentence him to stoning, Tosafot says no—you cannot sentence him to stoning because the warning was an uncertain warning. That’s what Tosafot is saying. Okay? Important point—notice that every word here in Tosafot contains assumptions about the concept of uncertain warning.

[Speaker D] But how can you judge based on his hidden intentions?

[Rabbi Michael Abraham] What? I didn’t understand.

[Speaker D] How can a religious court judge according to his hidden intentions that nobody knows?

[Rabbi Michael Abraham] I’m not judging according to hidden intentions. I’m discussing: suppose that was his intention, or suppose that was his intention. I don’t know what his intentions were.

[Speaker K] Wait, but—

[Rabbi Michael Abraham] What would happen on this side of the case, and what would happen on that side of the case? So Tosafot says, wait—but maybe he intended to remove it and then forgot? So I ask: why doesn’t Tosafot say maybe he intended not to remove it, and then forgot, and changed his mind, and forgot? So I say: Tosafot is not bothered by that “maybe.” Because that maybe does not turn the warning into an uncertain warning. Only this maybe that Tosafot brings here turns it into an uncertain warning. Which maybe? Perhaps he intended to remove it, and the fact that he did not remove it was because perhaps he forgot. Okay? Now I ask: what if he didn’t forget? He intended to remove it, and in the end he changed his mind, decided to be a transgressor, or got lazy—

[Speaker D] Whatever you want.

[Rabbi Michael Abraham] Why specifically forgot? First I asked about the condition in the first part of Tosafot—what did he intend? Now I’m asking about the condition in the latter part, where Tosafot says maybe he intended to remove it and forgot. So first I discussed why specifically “intended to remove it”; that we solved. Now I’m asking: why specifically forgot? What about changing his mind? Getting lazy and not removing it? What? Why, why, why don’t those also turn the warning into an uncertain warning?

[Speaker D] Because forgetting is maybe under compulsion. What? And forgetting is compulsion, no?

[Speaker G] No, so what?

[Rabbi Michael Abraham] In forgetting, he doesn’t have awareness.

[Speaker D] If the assumption—

[Rabbi Michael Abraham] That he forgot—if forgetting is compulsion, then he should be exempt from stoning not because of uncertain warning, but because the transgression was committed under compulsion.

[Speaker G] In forgetting, his intention still remains; in changing his mind, the intention itself changes—what he wanted.

[Rabbi Michael Abraham] Right, and then what does that mean? And forgetting is unintentional error. What does that mean?

[Speaker G] That his intention—

[Speaker A] Remains; he still wanted to.

[Speaker K] But he forgot?

[Speaker A] He didn’t do it. His awareness still was to save himself.

[Rabbi Michael Abraham] I didn’t understand.

[Speaker A] He remained with that intention, with the desire to save himself and not commit the transgression. Whereas if he got lazy or changed his mind, he decided that yes, he is acting deliberately.

[Rabbi Michael Abraham] If he remained with the intention—why do I care about his intentions?

[Speaker D] Because it’s an uprooting condition.

[Speaker A] A person has to be aware of it. Meaning: I know this is prohibited, I know I’m committing the transgression, and despite that I’m doing it.

[Rabbi Michael Abraham] That is at the stage of—

[Speaker A] Sticking it on.

[Rabbi Michael Abraham] And at the stage of sticking it on, he intended to remove it. Tosafot is talking about a situation where at the stage of sticking it on he intended—maybe at the stage of sticking it on he intended to remove it, and afterward he forgot. I’m asking: and what if he intended to remove it, to remove it, and afterward changed his mind or got lazy? Why doesn’t that turn the warning into an uncertain warning?

[Speaker K] But here this is deliberate, and here it’s unintentional. So what? So in the deliberate case he is liable; it’s a full warning. And in the other case there was continuity, and in forgetting it’s an uncertain warning.

[Rabbi Michael Abraham] And in the act there was—

[Speaker H] Continuity, and here there wasn’t continuity in the act.

[Rabbi Michael Abraham] You’re mixing levels. If the person forgot, that’s considered compulsion. If that were considered compulsion, there would be no need to enter the question of uncertain warning. We do not punish someone for a transgression committed under compulsion.

[Speaker K] He’s not talking about compulsion.

[Rabbi Michael Abraham] The whole discussion here assumes that even if he forgot, this is still not a transgression under compulsion. After all, he stuck it on; it’s his problem that he forgot.

[Speaker K] But—

[Rabbi Michael Abraham] There is a problem here of uncertain warning, and therefore we would not stone him—not because this is compulsion.

[Speaker H] Because there is—

[Rabbi Michael Abraham] A break in the continuity here.

[Speaker H] And then the warning doesn’t come immediately before the act.

[Rabbi Michael Abraham] So one possibility is that if there is a break in continuity, then seemingly you cannot stone him at all.

[Speaker E] Maybe—

[Rabbi Michael Abraham] Maybe you can’t stone him, but not because of uncertain warning. You can’t stone him because the initial warning does not concern the failure to remove it. So that’s not relevant to uncertain warning. What Tosafot is asking is from the standpoint of uncertain warning. Uncertain warning is only if he forgot. Exactly.

[Speaker E] So I’ll go back to this again: then seemingly you can only know whether it’s an uncertain warning at the end?

[Rabbi Michael Abraham] Yes. What do you mean, “can know”? I know beforehand—but what is the outcome?

[Speaker E] I don’t know whether a person will forget, or get lazy, or change his mind. In the end, afterward, you check why he didn’t remove it.

[Rabbi Michael Abraham] No, no. Even in the end you don’t know. In the end, what happened was that the bread got baked. You don’t know why he didn’t remove it. Tosafot says yes, but maybe he didn’t remove it because he forgot? Even at the end we don’t know. These are only possibilities. But since maybe he forgot, then it could be that this was actually an uncertain warning. Right? That’s what Tosafot is basically saying.

[Speaker E] Yes, yes.

[Rabbi Michael Abraham] I have a question of uncertain warning.

[Speaker K] Wait, I have a question. In every warning he has to say everything, right? He has to say, yes, I understand and I’m doing it anyway; or yes, I understand and I’m not doing it. Meaning, in forgetting—if he said, if he answered—no, the question is different. In uncertain warning too, does he also have to say those things?

[Rabbi Michael Abraham] In every warning he has to say it. Uncertain warning is only a halakhic status of the warning. In every warning he has to answer and say that.

[Speaker K] So the forgetting here—no, so I understand changing his mind and getting lazy. But forgetting has another element. Meaning, if you answered anyway, and you know, and despite that you forgot, there really has to be a large span of time here.

[Rabbi Michael Abraham] I didn’t understand.

[Speaker K] I’m saying that if he received a warning and he said, indeed, I know, and I—I know, okay? And he indeed intended not to commit the transgression, but he forgot. So how can there be such a short forgetting between his statement and the action?

[Rabbi Michael Abraham] What’s the problem? Maybe he forgot. What do you mean? At some point the forgetting happens, no?

[Speaker K] Yes, so that’s it—at some point. There has to be time, a time gap. It could be that the warning here already becomes totally void. It’s no longer proximate. It can’t be proximate when he answers and then forgets. The word “forgetting” here must involve a period of time.

[Rabbi Michael Abraham] Fine, so there will be a period of time—but how much time? We don’t know. Since we don’t know, we are concerned that maybe he forgot.

[Speaker E] But also in the case of food, with the oath about the bread, there’s no distinction whether he changed his mind or forgot—there’s no distinction there. It’s uncertain warning regardless of the reason.

[Rabbi Michael Abraham] No, it does matter what the reason is.

[Speaker E] But they don’t bring the reason.

[Rabbi Michael Abraham] Tosafot gives this reason—that maybe he forgot.

[Speaker E] But in the end they don’t check what the reason was. They decide that it’s an uncertain warning, no matter why.

[Rabbi Michael Abraham] You can’t check the reason. After all, it’s all hypothetical. You know what actually happened. You ask yourself what went through his mind. If there is a possibility that what went through his mind was forgetting, that is what turns the matter into an uncertain warning.

[Speaker E] Then the same thing here. The moment there is such a possibility that he might forget—okay, and that’s exactly the point. Because this labor continues over time and there is a possibility that he will forget, therefore this will be an uncertain warning.

[Rabbi Michael Abraham] That is what Tosafot asks. You’re repeating what Tosafot asks. I agree—that is what Tosafot asks. Therefore Tosafot says: why here is this not considered an uncertain warning? After all, he can forget; maybe he forgot.

[Speaker D] So maybe indeed later in his answer—

[Speaker E] That’s his difficulty, and it’s a good difficulty.

[Rabbi Michael Abraham] Yes. And now I’m saying the following.

[Speaker D] Maybe following what Yael said, it’s really the forgetting that causes it not to be immediate. And if it’s not immediate, it needs an additional warning.

[Rabbi Michael Abraham] Why—what difference does that make?

[Speaker D] And that’s what we saw in the sources you brought.

[Rabbi Michael Abraham] But if he changed his mind or got lazy, then that is immediate? Why?

[Speaker K] No, there is deliberateness in getting lazy.

[Rabbi Michael Abraham] No, it doesn’t matter; he is deliberate—what difference does it make? That also isn’t immediate. What does that have to do with the length of time?

[Speaker G] It strengthens the question; it leaves the question standing. It still doesn’t—

[Rabbi Michael Abraham] The point is—

[Speaker K] That this turns the forgetting into an unintentional act.

[Rabbi Michael Abraham] The point is this: if he intended—after all, we don’t know what he intended at the beginning, and we don’t know why he did not remove it in the end, right? And we also can’t ask him, because the person is an interested party; this is a capital punishment case. So you can’t ask him, and we don’t know what is in his heart. We only raise hypothetical possibilities: maybe he intended this, maybe he forgot, maybe he changed his mind, maybe he got lazy. It’s all hypothetical. We are only discussing which possibilities are on the table. And that will determine whether the warning is an uncertain warning and whether we can execute him or not, okay? Now look: let’s say the person changed his mind or got lazy, but in the end he did not remove it intentionally, not because he forgot. If he did not remove it intentionally, then clearly his intention from the outset was not to remove it.

[Speaker D] Yes, right.

[Rabbi Michael Abraham] Or at least there is a presumption—because the opposite can happen. He intended not to remove it, but as he approached the punishment of stoning he suddenly says, wait, wait, am I crazy?—and changes his mind and removes it. But here we are talking about the opposite situation: he intended to remove it, and in the end he changed his mind and left it there and did not remove it. That is implausible. Meaning, if in the end the person did not remove it deliberately—not because he forgot, but out of laziness or because he changed his mind—but he deliberately did not remove it, then that is an indication that from the beginning he intended not to remove it. And the possibility that initially he intended to remove it falls away as an implausible possibility. Therefore Tosafot does not raise those possibilities. Do you understand what I’m saying? I asked about Tosafot: why is he concerned only with the possibility that maybe he forgot? Maybe he intended to remove it and afterward changed his mind or got lazy and decided not to remove it. Why specifically forgot? So I say simply: on the side where he changed his mind or got lazy, that basically means he intentionally did not remove it, deliberately. If he deliberately did not remove it, there is no room for the concern that maybe at the stage of sticking it on he did intend to remove it. That’s implausible. Because if you see that he is willing to take upon himself the punishment of stoning, then why, at the stage of sticking on the bread, would he think to himself “on condition that I’ll remove it”? Especially since sticking bread on the oven in order to remove it is itself simply illogical. Because why are you sticking it on if you want to remove it? You stick it on so that it will bake. So this whole concern that he stuck it on in order to remove it is a remote concern. So in a case where the person, on the possibility that the person did not remove it deliberately, intentionally, then clearly from the outset he intended not to remove it, and therefore this is a definite warning. What possibility can turn the warning into an uncertain warning? Only the possibility that he intended to remove it but forgot. Because on the side that he forgot, it absolutely could be that from the outset he intended to remove it. On the side that he got lazy or did not remove it intentionally, the possibility that from the outset he intended to remove it is very remote; we are not concerned for it. Therefore Tosafot says this specifically in the case of forgetting. There is some presumption that if right now he didn’t remove it and he doesn’t care about the stoning, then go backward—apparently he also didn’t care about the stoning at the stage of sticking it on. And therefore he didn’t stick it on in order to remove it; he stuck it on in order to leave it. And then this is a definite warning. So Tosafot says: yes, but there is also the possibility that maybe he did intend to remove it; he just forgot, and therefore he did not remove it. That’s different; that really can happen. Because the fact that he didn’t remove it here is not because he was willing to be stoned; it’s simply because he forgot. So you have no proof that this person is willing to be stoned. And if so, at the stage of sticking it on as well, you cannot be sure that he intended to remove it. Okay? That he intended not to remove it, sorry.

[Speaker D] That he intended not to remove it.

[Rabbi Michael Abraham] Now, something similar—look, there is a Tosafot in Gittin.

[Speaker A] Wait, can I ask—just a situation where he stuck it on unintentionally, they reminded him and warned him and everything, and then he says, okay, I’ll leave it, it’s convenient for me that it stays there.

[Speaker D] But the warning is before—

[Speaker A] The act.

[Rabbi Michael Abraham] Ah, right. Here, one note—you see note one in my summary? Yes. It still needs discussion here what the law would be if they warned him after he stuck it on and before the baking was completed. The warning was not given at all before he stuck it on; it was given during the baking, and then he says, yes, and for that purpose I am doing it, and he leaves it there. Then apparently, according to the Minchat Chinukh, he would be liable to stoning, because they in fact warned him before the act was completed, and he could have refrained from continuing, and he continued. Understood. According to the Rashash it’s not clear; it depends on whether the possibility of uprooting exists, but it’s not clear to me. According to the Rashash, it could be that this would not be enough. Okay, so let’s look at Tosafot in Gittin. The Talmud there discusses a case where someone sent an agent to divorce his wife and then canceled his agent without the agent being present.

[Speaker E] Explain the situation to us?

[Rabbi Michael Abraham] She isn’t supposed to receive the bill of divorce? I sent an agent to divorce my wife, okay? Now I canceled the agency—I changed my mind, I don’t want to divorce her. Now the agent is already in London. I have no way to inform him, because there are no telephones, no faxes—we’re talking about two thousand years ago. So I have no way to notify him. What will happen if the agent goes and divorces the woman? She will think she is divorced and marry someone else, while in truth she is still my wife. He divorced her without authority, because he was no longer my agent; I had canceled the agency. And then terrible things happen.

[Speaker K] How can one cancel an agency if it’s not—how can you cancel an agency just by intention and not by statement?

[Rabbi Michael Abraham] A statement, a statement—I tell two witnesses that I am canceling the agent.

[Speaker K] But the agent didn’t receive that statement.

[Rabbi Michael Abraham] He didn’t receive it, correct. I tell two witnesses that I am canceling the agent. That’s not—

[Speaker K] That’s not logical, if the agent isn’t there.

[Rabbi Michael Abraham] Just as I appointed him, so I canceled him. What do you mean? Why should I care whether he knows or not? His act, from my perspective, is irrelevant to me. He has no authority to do the act on my behalf.

[Speaker K] That’s not true; it’s problematic, it’s problematic.

[Speaker H] Fine, but never mind—

[Speaker K] It’s problematic—

[Speaker E] In every—

[Rabbi Michael Abraham] Nevertheless, the Jewish law is that you can cancel the—

[Speaker H] The agent, what can you do?

[Rabbi Michael Abraham] In Jewish law you can cancel the agent. It doesn’t matter right now; I don’t see a problem with it either.

[Speaker E] But did they penalize him?

[Rabbi Michael Abraham] Fine, that is the Jewish law.

[Speaker E] So now a woman will never know if she is divorced if an agent was sent, because she can never know whether he changed his mind or not. And if she is overseas, she also has no way to check. So she will never be divorced.

[Speaker K] But this act causes things that are not necessarily good.

[Rabbi Michael Abraham] Wait, wait, give me a second, give me a second.

[Speaker K] Okay, okay.

[Rabbi Michael Abraham] “The woman won’t know” is not relevant, because in most cases someone who sends an agent does not change his mind, so she can rely on the majority. Usually a person does not change his mind. Okay? But there are cases where he nevertheless canceled the agent. In the case where he did cancel the agent, the woman will go and marry because she relies on the fact that if he sent an agent, he probably did not change his mind—apparently she is divorced. She will go and marry, her children will come out mamzerim, and all the acts of intercourse are, of course, illicit, and all kinds of things like that. This is a very problematic situation. What did the Sages do to solve it? They annulled the marriage. The Sages have authority to uproot the marriage, to annul the marriage.

[Speaker K] But that’s not okay.

[Rabbi Michael Abraham] It’s a serious thing—

[Speaker A] So she’ll still be the first man’s married woman, Yael? Yael, that’s the best thing. Maybe she’s still the first man’s married woman?

[Speaker K] But what about her children with the first one?

[Speaker A] Then they won’t be mamzerim.

[Speaker D] Exactly, that’s the whole point.

[Speaker K] I said, it’s not okay neither this way nor that way.

[Rabbi Michael Abraham] The moment the marriage was annulled, then she was never married to the first one in the first place. Consequently, if she married the second, she was unmarried, she could marry him, and her children from the second are fully legitimate and everything is fine. That solves the problem.

[Speaker E] She could even marry a priest. How did they annul the first marriage? I didn’t understand. What? How did they annul the first marriage? Whoever marries does so subject to the authority of the rabbis.

[Rabbi Michael Abraham] The Sages have the power to annul the marriage.

[Speaker N] So wouldn’t it have been simpler—wouldn’t it have been simpler to say that he cannot cancel his request for a bill of divorce? I don’t understand why do this, and then her first children become mamzerim?

[Speaker G] No, no, no, we didn’t say the first children.

[Rabbi Michael Abraham] They annulled—

[Speaker N] The marriage, so the children become mamzerim?

[Rabbi Michael Abraham] No, no—

[Speaker A] Heaven forbid.

[Rabbi Michael Abraham] I can’t—give me a second to finish. Children born to a couple that is not married are not mamzerim; they are fully legitimate children. They are not mamzerim in any way. Children are mamzerim only if they are born to a married woman from another man. Therefore I ask you—

[Speaker N] But she is another man’s married woman, so what happens with her children from the husband’s marriage?

[Speaker A] They are not mamzerim.

[Rabbi Michael Abraham] No, no, heaven forbid. She is completely unmarried. She is married—she is married to the first one, had children from him. Now—Reuven. Now he divorced her. She goes and marries Shimon, and with Shimon too she has children from him. Okay? Now Reuven canceled the divorce agent without the agent being present. Okay? What comes out? That in fact she was never Reuven’s wife at all. It was annulled retroactively. So her children from Reuven are legitimate; they are children of an unmarried couple, that is fine, legitimate children. Her marriage to Shimon is fully valid, because she was unmarried; she was not Reuven’s wife, she could marry Shimon. Her children from Shimon are legitimate children whose two parents are properly married. Everything is fine; there is no problem here.

[Speaker E] But I still didn’t manage to understand—there has to be a reason to annul, so why annul? If I understood correctly, they annulled the first marriage. Did something improper happen in the first marriage?

[Rabbi Michael Abraham] In order that she not be a married woman, the Sages have authority to uproot the monetary basis, to enter here into the matter. The Sages have authority to uproot a marriage when they see fit.

[Speaker O] But why cancel—why cancel the marriage and not cancel the ban of Rabbeinu Gershom on sending the agent?

[Rabbi Michael Abraham] You can’t do it like that. Give me a second—I can’t. May I answer? No, just one second, let me. I don’t want to get into the whole topic of “the rabbis annulled the marriage”; that’s a different topic. You could sit on it for a year. I’m bringing it here as an example; all these discussions are not relevant right now.

[Speaker A] It’s more thought-provoking in movement.

[Rabbi Michael Abraham] Take these things as a factual assumption. The Sages annulled the marriage in the case of someone who sent an agent to divorce and then canceled him. Period. That’s it—that’s the Jewish law. Okay? Now Rabbeinu Shmuel asks, Tosafot asks: “And Rabbeinu Shmuel further asked: how can we ever sentence to death a married woman who committed adultery?” Rabbeinu Shmuel asks: now any married woman in the world can sleep with someone and not be liable to death. Why? Because when they warn her before she commits adultery, it will be an uncertain warning. Because it could be that the husband will send her a bill of divorce, cancel it without the agent’s knowledge, and then it will turn out that the Sages will retroactively uproot her marriage to the first husband, and then the adultery she committed was committed while she was unmarried; it was not prohibited. And then it comes out that you can never be sure that this act is indeed one that leads to liability for death. So all warnings in the world in such cases are uncertain warnings, according to this. That is Tosafot’s question. Rabbeinu Tam says that in such a case this is not an uncertain warning. Why? “Because we follow the majority.” We follow the majority, and most people do not divorce their wives. Most people do not divorce their wives. So if a woman is now a married woman—and when a bill of divorce is sent, they don’t cancel it—what do you mean? Let’s say Reuven’s wife committed adultery with Shimon. Okay? Now they warned her beforehand; they told her, know that this act of adultery will bring upon you the death penalty. Okay? She says yes, and for that purpose I am doing it. She committed adultery, and they brought her to a religious court. The religious court now wants to sentence her to death. Tosafot says it cannot, because this is an uncertain warning. Why? Because when they warned her, there could still arise a situation where that scoundrel—her legal husband—will send an agent to divorce her, cancel the agent without her knowledge, and then the Sages will annul the marriage from the first husband, and then it turns out that she was unmarried at the time she committed adultery. An unmarried woman is not liable to death. So it turns out that there is an uncertain warning here—who knows, maybe that will happen. The moment there is a possibility that maybe it will happen, you are in doubt. You cannot sentence her to death because at the stage of the warning it was not clear that this act would in fact bring her to liability for death. That is an uncertain warning. Rabbeinu Tam says no, this is not an uncertain warning. Why? Because in most cases we go after the majority. In most cases the husband does not divorce his wife; most husbands do not divorce their wives. And even if they divorce, they do not cancel the agent behind his back. Since this is a concern for a remote case, it is not called an uncertain warning. Meaning, I have a presumption or a majority that clarifies that this possibility is an implausible possibility. An implausible possibility does not create a situation of uncertain warning. Okay? That is basically what Tosafot says. I want to argue that the same is true אצלנו.

[Speaker K] So why exactly is that—

[Rabbi Michael Abraham] Wait. The possibility that a person intended not to remove it, okay? And afterward—sorry—intended to remove it and afterward changed his mind and left the bread there to bake, there is a strong majority that this is implausible. Why? Because if the person is bothered—if the person is not bothered by the punishment of stoning, because the fact is that he decided to leave it there deliberately, then why assume that when he stuck the bread on, he stuck it on in order to remove it? After all, he is not bothered by that at all. And therefore it is clear that if he did not remove it in the end, apparently from the outset, when he stuck it on, he also did not intend to remove it. Therefore the possibility that maybe he changed his mind or got lazy is not a possibility that bothers Tosafot, because on that side of the case this is not an uncertain warning; it is a definite warning. The only possibility that can turn the warning into an uncertain warning is the possibility that he intended to remove it and forgot. Because if he forgot, then you have no indication that he is not bothered by the punishment of stoning, because the reason he did not remove it is only because he forgot. If he had remembered, he would have removed it, so he is bothered by the punishment of stoning. And if that is so, it is very reasonable that when he stuck it on, he did so in order to remove it. That can turn the warning into an uncertain warning because it is reasonable. Meaning, considerations of plausibility are definitely taken into account when we determine whether a certain warning is an uncertain warning or not.

[Speaker E] And because of that, what exactly is the whole question of the Talmud? Wait—the possibility—

[Rabbi Michael Abraham] That you won’t become liable to death is a remote possibility, implausible; there is a presumption against it, there is a majority against it. It’s not a possibility we take into account.

[Speaker E] Then what is the whole Talmudic discussion for? I’m really asking. A person stuck bread on, and now the Talmud discusses at length whether to allow him to remove it or not—what are the chances that a person would do such a thing and then regret it and now want to take the bread back out?

[Rabbi Michael Abraham] A completely different question. It has nothing to do with the question you asked before. What I said before is a question of evaluating reality. Meaning: can a remote possibility turn the warning into an uncertain warning? The answer is no. But that does not mean the remote possibility cannot happen. The remote possibility can happen, and we have to discuss what the law would be if it happened. So that is exactly what amazes me—about that I really was surprised, that the Talmud takes an extreme and highly implausible case and discusses it for page after page. The Talmud discusses it; the Talmud is not interested in that at all, it does not bother it.

[Speaker P] Why? Because the Talmud is discussing a principled question: what should the Jewish law be in this imaginary situation? That is a halakhic clarification that has to be done regardless of whether it will actually be realized or not. Here I am talking about something entirely different. In the question of whether the warning is an uncertain warning, there, if we are talking about an imaginary possibility, it will not turn the warning into an uncertain warning. Wait, and why is it important to us whether this is a warning or an uncertain warning? Once the act was done, then in any case, even if it was an uncertain warning, then it became a warning.

[Rabbi Michael Abraham] No, no, no—mistake, mistake. Only if the act was done does the discussion begin. If the act was not done, there is no liability for stoning.

[Speaker P] No, I mean if it was not done completely.

[Rabbi Michael Abraham] Only if it was completed does the discussion begin. The bread remained there and was baked, and now we ask ourselves: seemingly there is liability for stoning. Only now does the discussion begin whether there was an uncertain warning here. Because if there was an uncertain warning here, then we do not stone him even though the bread was baked. If in the end the bread was not baked, then there is no need to get to the question of uncertain warning. There is nothing for which to stone him; no prohibition occurred.

[Speaker M] So the very fact that there was an uncertain warning—so if there was an uncertain—

[Rabbi Michael Abraham] Uncertain warning is only in a place where a transgression was fully committed. The transgression was fully committed, only it could have ended up not being committed—and so at the stage of the warning, the warning is an uncertain warning. And now even if it was fully committed and in principle I am liable to stoning, since the warning at the time it was given was an uncertain warning, they cannot stone me, because the warning was an uncertain warning. But if the transgression was not fully committed, there is no discussion.

[Speaker D] Is the discussion only according to Reish Lakish?

[Rabbi Michael Abraham] Let’s say for the sake of the discussion, yes. Okay? Fine, just one last question, because I see this took me a long time. Where are you up to on the page? Did you finish it?

[Speaker K] No, we only got to about nine, basically; we didn’t really finish it.

[Rabbi Michael Abraham] I’ll need a bit more in the next lesson on this matter; I still haven’t finished. So fine, I’ll add for whoever it’ll give you some livelihood—each according to what she managed—but in principle we continue, we continue the topic.

[Speaker D] Okay, Happy Hanukkah. Thank you very much, Shabbat shalom, Hanukkah—

[Speaker A] Happy to everyone.