Shabbat Tractate, Chapter 1 – Lesson 17

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[Speaker E] What? I already told you from the start that I don’t understand the situation at all—why would a person stick it in, why are there even questions about this, where did you get this bizarre scenario from. But by the way, with an olive’s bulk it actually very much could happen. Because if they warn a person and tell him that if he eats a whole one then he’ll be punished, he’ll incur a penalty, then he’ll say, great, so I’ll eat half and I won’t incur the penalty. It’s worth it for him. He’ll just eat half.

[Rabbi Michael Abraham] I’d say even more than that. Even if he doesn’t eat the second half not because he’s afraid of the authorities—he just doesn’t feel like it, he only wants half an olive’s bulk—what’s the problem?

[Speaker E] There’s no rule that once a person started properly, then he gets legitimacy. Suppose the person is very hungry and can’t resist the temptation and wants to eat half. Then when they warn him and tell him, he gets legitimacy to eat only the half.

[Rabbi Michael Abraham] I understand what you’re saying, I’m just saying you don’t need to get there. What you’re saying is true. You don’t need to get there. Even if he stopped eating not because of fear of the authorities, but simply because he’d had enough, he only wanted half an olive’s bulk—what’s the problem?

[Speaker C] Loss of appetite because the dish didn’t turn out well for him.

[Rabbi Michael Abraham] So therefore, in the case of half an olive’s bulk, where a warning about half an olive’s bulk is a definite warning, that really is a problematic claim. Because who told you he’ll eat the second half? Maybe yes, maybe no. Now you’d have to say that the warning is an uncertain warning.

[Speaker B] So why, really—what? I think that the second part in baking, the second part, is a condition for the first part. In eating half, the second half is not the condition. It won’t uproot or depend on the first part. Meaning, these are two separate parts, two separate dishes. But in baking it’s not two separate dishes.

[Rabbi Michael Abraham] Fine, but I’m talking about two halves of an olive’s bulk, not two separate dishes. Two halves of an olive’s bulk are on the same plate.

[Speaker E] You can solve it based on what comes next.

[Speaker C] What Yael is trying to say is that you can divide this eating into slices, into stages. Whereas baking is two parts that depend on each other.

[Rabbi Michael Abraham] And therefore what? Therefore. In Tosafot’s question, after all, he asks that this is indeed an uncertain warning. That’s where I stopped myself in the middle. I started explaining Tosafot’s answer and not the question. And the question was that in the case of sticking bread into the oven, this is an uncertain warning. So the Birkat Avraham asked about this: why is this an uncertain warning? There’s no concern here that maybe he’ll forget, because it’s one act, like two halves of an olive’s bulk. And then I started making a distinction and said that in sticking it in, there’s even more reason to say that it’s not an uncertain warning. Because here it’s clear he’ll continue if he already stuck it in—why else did he stick it in? But that belongs to the answer. Leave that aside for the moment, I mixed things up here. I started explaining the answer; I’m talking about the question.

[Speaker C] He doesn’t need to do anything for the action to be completed. In contrast to an olive’s bulk, here there’s positive eating.

[Rabbi Michael Abraham] Right, so all the more so—you’re going back again to what I said. So he says that sticking bread into the oven is less of an uncertain warning than eating an olive’s bulk. Correct. And we want to explain why it’s more so. After all, in eating an olive’s bulk, this is not an uncertain warning, right? That’s a given, because otherwise you couldn’t administer lashes for eating an olive’s bulk of carrion. So it’s not an uncertain warning. And regarding sticking bread into the oven, Tosafot asks why this is not an uncertain warning; Tosafot assumes it ought to be an uncertain warning.

[Speaker B] Another possibility: in baking, he can take it out, and then he’s essentially uprooting the prohibition, uprooting the liability, right? Whereas with the olive, if he eats the second half he will complete the prohibition, afterward he’ll have that prohibition, the warning will be a definite warning if he eats the second half. Why? But he has no way to escape if he completes the labor. Right, fine, but if he completes the labor then liability applies to him.

[Rabbi Michael Abraham] But an uncertain warning is always a hypothetical test. When I warn him, will he necessarily reach punishment, or is there a possibility that he won’t? In the end he did reach punishment, but since at the stage of the warning there is a possibility that he won’t reach punishment, that is what’s called an uncertain warning.

[Speaker E] So in my opinion the Birkat Avraham is mistaken here. Meaning, you can infer—the connection is the connection of not forgetting. Just as we don’t hold that he’ll forget the second half, so too he won’t forget the matter of not taking it out, the matter that he’ll leave it inside. In that, the Birkat Avraham is right. But regarding the quality of the uncertain warning here, it’s not correct to learn it from an olive’s bulk. Meaning, I think that from the Birkat Avraham you can learn only one part and not the second part. Why?

[Rabbi Michael Abraham] Why not the second part? I think yes.

[Speaker E] Because we said that we start from the assumption that this action is done as if by itself. The moment he stuck it in, it’s basically already done, unlike an olive’s bulk where there’s a much more serious possibility that he’ll deliberately decide not to continue.

[Rabbi Michael Abraham] Exactly—listen to what your own mouth is saying. So that basically means that in sticking bread into the oven, it’s less of an uncertain warning than with an olive’s bulk. So the Birkat Avraham is right: why does Tosafot see this as an uncertain warning? Here he’s already completely finished the action about which he was warned. Why do I care that afterward there’s another condition, that it also has to bake? On the contrary, he’s right in both of his questions. So what I want to say is this—sorry for the mix-up I made, I brought that in here.

[Speaker B] No,

[Speaker E] I’m just saying that you can’t learn it from that. In my opinion, the Birkat Avraham’s mistake is that half an olive’s bulk is indeed considered an uncertain warning.

[Rabbi Michael Abraham] No, no.

[Speaker E] Not from the perspective of not forgetting, but from the perspective of the quality of the warning, because maybe he won’t continue.

[Rabbi Michael Abraham] No, and it’s not considered that. Why not? Because in fact he’s right that it’s not considered an uncertain warning. Because otherwise, how can you administer lashes to a person who eats an olive’s bulk of carrion? Maybe he won’t eat the second half—how do we ever give lashes for that transgression? So clearly—that’s his proof—the reasoning is correct, maybe he won’t eat the second half. But first of all, factually, from the very fact that there is a punishment of lashes for eating an olive’s bulk of carrion, you see that we are not concerned with such a possibility that he won’t eat the second half. If he started the act of transgression, our assumption is that he finishes it. So the Birkat Avraham is right: if so, then the same applies in our case too.

[Speaker E] Because I think the reason this is not an uncertain warning is not because of that. Sorry—not because of that, but according to what we learned later, that this is a continuing transgression, and then you can say whether it’s an uncertain or definite warning only at the end of the act. What do you mean?

[Rabbi Michael Abraham] A warning is measured by the stage at which the warning is given. The end of the act is irrelevant. After all, at the end of the act—again, this is confusing, I said this in the previous class too—the end of the act is always one in which the bread got baked, because if in the end the bread didn’t get baked but I took it out, then the question of whether to lash him or stone him or not doesn’t arise. We’re going to stone him. Rather, Tosafot says: true, it got baked, and true, in principle he would deserve the punishment of stoning, but at the stage of the warning there was also a possibility that it would not bake. And since that is so, the warning is an uncertain warning, and therefore even when in practice it did get baked in the end, I am not supposed to stone him.

[Speaker D] Maybe still because

[Rabbi Michael Abraham] Also, in the end the bread was always baked, that’s clear. Otherwise the discussion doesn’t even come up.

[Speaker D] But maybe part of the—why Tosafot? Maybe an additional datum is time. Because in baking, it’s true that by the fact that he put it in, he already intends to bake it, but there’s quite a long time until it finishes and he becomes liable. There’s a long time during which he could change. And in eating something non-kosher, carrion, there isn’t much time. It’s within the time it takes to eat half a loaf. Even if that’s his intention. Maybe there’s another dependence here on time?

[Rabbi Michael Abraham] Here you really could say that, yes?

[Speaker B] The time it takes to eat half a loaf—roughly what times are we talking about?

[Rabbi Michael Abraham] I said: four minutes to nine minutes.

[Speaker B] Four minutes to nine minutes. Okay.

[Rabbi Michael Abraham] Some say even two minutes, but the accepted opinion is something like four minutes. What Yiska is saying is indeed one possibility. One possibility is to say that here there is a lengthy baking process. Over the course of that baking process, it is definitely possible that a person will forget. He’s no longer occupied with this matter. He already finished his part at the stage of sticking it in. After that it goes into the oven and bakes. Here there definitely is a concern that he may forget. In the case of eating an olive’s bulk, he eats an olive’s bulk—half an olive’s bulk—and let’s say it takes two minutes and he eats another half olive’s bulk. But practically speaking, he is engaged in eating that olive’s bulk, and they warned him beforehand. Here I say there is no concern that he’ll forget. But in sticking bread into the oven, maybe there is a concern that he’ll forget? That’s the claim, the factual concern. Why is there in reality more concern that he’ll forget in the case of sticking it in than in eating two half-olive portions? But it could be that there’s also a halakhic difference here. What do I mean? I spoke in the previous class about the question of presumptions. I said that if in the end he didn’t take it out, then there is a presumption that already… sorry, not if he took it out in the end—if he didn’t take it out in the end, then there is a presumption that already at the beginning, when he stuck it in, he apparently did not intend to take it out. And therefore, again, that presumption is a halakhic consideration. It’s not a psychological estimate of what he really intended. Rather, the halakhic assessment is this: if right now this is the situation, then if you want to claim that previously the situation was different, the burden of proof is on you. If I now know that he is leaving it in the oven, and you want to claim that from the outset he did not intend to leave it in the oven, bring proof. Because we… it’s like a mikveh that is now valid, and you say, wait, maybe a week ago it wasn’t valid? There is a presumption based on the present state. If it is valid now, then in order to claim that a week ago it wasn’t valid, you need to bring proof. I have presumptions. If this is the current state, I assume this was always the state, unless you bring proof otherwise. So as I said in the previous class, I can say the same thing here. What am I saying here? That the difference Yiska suggested is a difference in assessment, a psychological estimate. In the case of sticking bread into the oven, there really is more concern that he’ll forget—simply factually—because it takes time and he’s no longer dealing with it. He’s gone somewhere else altogether and meanwhile it bakes in the oven. That’s not like someone sitting next to the plate and continuing to eat his olive’s bulk of carrion, where he is occupied with that very matter and we do not assume he will forget. That’s a factual, psychological difference. But there could also be a halakhic difference. The halakhic difference is that when we’re talking about eating an olive’s bulk, the presumption is that the person does not forget. Why? Because if the person started eating the olive’s bulk of bread—sorry, once the warning applies—I continue to assume that he is aware of the warning the whole time he is eating, unless proven otherwise. An original presumption—I assume the state continues unless told otherwise. In our case, however, we are talking about an act that has already ended. The baking afterward is something else. And if that is so, it may be that the presumption does not continue from the stage of sticking it in to the stage of baking, since that is a different stage; he is no longer connected to that stage, especially because my act has already ended. And then the difference is not in the question of how likely it is that he really forgot. It’s not a probabilistic difference, but a halakhic difference: here I do not apply a presumption, I do not say that what was true at the beginning probably continues afterward until proven otherwise. Why? Because once I’ve moved into a different phase, I finished my action, I went on my way, meanwhile the bread is baking in the oven. That’s it, the story is over, so I don’t continue the presumption that I don’t forget. So here it’s no longer a probabilistic difference but a halakhic difference, okay?

[Speaker E] But wait, wait. First of all, we were talking not about him forgetting the bread in the oven, but that he forgets… the warning. Right. Now, if there is a presumption that a person who is told, don’t stick the bread in, don’t bake the bread in the oven, and you’ll be liable to death, and he says yes, I’m doing it on that condition, on that condition, on that condition that I’ll be liable to death—what presumption is there here that he will now forget that the bread is baking inside?

[Speaker B] He should have taken it out immediately.

[Rabbi Michael Abraham] You asked this in the previous class too, and I’ll answer you with what I answered you in the previous class: the Gemara’s assumption has nothing to do with the medieval authorities (Rishonim) at all; it’s an assumption of the Gemara. Once we’re talking about an uncertain warning and we’re discussing whether this is a valid warning or not—and after all we even rule that it is a warning, true, but Reish Lakish says it’s not a warning, okay? So what does that mean? In every case we’re talking about a warning where he said yes, and on that condition I am doing it, because otherwise you don’t even need to get to the point that it’s not an uncertain warning; it’s simply not a warning that creates liability, right? And if we are discussing an uncertain warning, that means there was a warning here and there was acceptance of the warning. He says yes, and on that condition I’m doing it. And nevertheless we define it as an uncertain warning. You see that the Gemara is not satisfied with the statement yes, and on that condition I’m doing it. I also suggested an explanation why. Why? Because when he says yes, and on that condition I’m doing it, that can mean: yes, I know what you’re telling me, you haven’t revealed some new halakhic innovations to me, I know all this, and on that condition I’m doing it. That doesn’t mean I’m not going to take it out afterward. Maybe I will take it out afterward. It’s just that when you add that I’m incurring the prohibition punishable by stoning, I tell you yes, yes, I understand, I know. I took that into account.

[Speaker E] Same thing with the olive’s bulk. Same thing with the olive’s bulk. On that condition I am doing it, and I’m planning to eat only half. He doesn’t tell them that, but his plan is to eat only half. Exactly the same thing.

[Rabbi Michael Abraham] Therefore exactly—that is exactly what the Birkat Avraham asked. Therefore I suggested.

[Speaker E] I don’t see the difference in time here at all. It makes no difference to me whether it’s fifteen minutes or nine or four.

[Rabbi Michael Abraham] It makes a huge difference, a huge difference. What you’re doing is repeating the Birkat Avraham’s question, and I’ll repeat the answer I gave to the Birkat Avraham. And the answer I gave was this: it can be formulated probabilistically and it can be formulated halakhically. Probabilistically, when I’m sitting next to a plate and eating an olive’s bulk of carrion and someone warned me beforehand, it is very likely that over those four minutes I did not forget the warning. By contrast, if I stuck bread into the oven and then went on my way—I went to work in the garden, it doesn’t matter, I went to do something else—and meanwhile the bread is baking in the oven, are you really sure that after, I don’t know, half an hour the bread is baking in the oven, after twenty-five minutes of doing something else, I haven’t forgotten? Is that really necessarily the same as an olive’s bulk of carrion? Absolutely not, factually. And I claim more than that: halakhically too there is a difference, or one can formulate a difference. What is it? The claim is basically this: regardless right now of the assessment of whether he really forgot or not, there is a halakhic assumption. The halakhic assumption says that so long as no proof has been brought, the previous state continues onward. And if he was aware of the warning when he ate the first half, then he is aware of the warning also when he ate the second half. And again, this is not a psychological estimate of awareness; it is a halakhic rule that I continue to assume the previous assumptions until proven otherwise. But all that is in the case of eating an olive’s bulk of bread when he is occupied with the same matter. But if he stuck the bread into the oven and has already finished his act, and now the bread is in the oven baking, here it may be that the first stage has already been cut off and I will not apply this presumption that continues the state onward so long as it is not proven otherwise. Okay? Yes, exactly with bread burning—that’s a good example.

[Speaker E] I don’t think that’s a good example, because you expect a person who was warned that if he doesn’t want to—he was warned, it was explained to him—that he should immediately take the bread out and not wait fifteen minutes.

[Rabbi Michael Abraham] You are assuming that this is expected, Hani. Yosef assumes it isn’t expected. If the person wants not to take out the bread immediately, he wants to take it out in another ten minutes, what business is it of yours? I’ll take it out in another ten minutes and I’ll be exempt. And then we’re back to the topic, if you remember, that we studied in previous classes—the topic of coercion at the end of the final period. I postpone something that I have time to do until the very last moment, and then I was prevented by circumstances; in this case, I was prevented because I forgot. There are definitely opinions that such a thing is called coercion. Therefore it’s not a matter of whether it’s expected or not expected. I’m not God-fearing, but I still planned to take the bread out five minutes before it would bake; but to leave it there inside for twenty minutes—what’s the problem? That was my plan. So I won’t get a Maftir Yonah, I’m not the greatest righteous person in the world, but I had the right to do that and I’m still not liable to stoning.

[Speaker B] No, it could also be

[Rabbi Michael Abraham] that I was busy

[Speaker B] with something else and I say, fine, in another ten minutes I’ll manage, and then I forget.

[Rabbi Michael Abraham] Fine,

[Speaker E] Okay, I just—I don’t have a problem with it, I understood the idea, I just don’t accept the… meaning, I’m Rabbi Yohanan, as it were, I just don’t know, it seems to me that saying it’s not a warning because of this is going too far.

[Rabbi Michael Abraham] Fine, you need to understand the background, certainly regarding death. Regarding death, the rule is “and the congregation shall save”; we are supposed to do everything possible not to carry out the death penalty in practice. We reach very, very remote concerns—maybe, maybe some condition was not fulfilled—in order not to carry out the death penalty on him. And in that context, at least regarding death, this is definitely a possibility, not even such a remote one. Maybe he forgot—yes, that can happen. Fine, but that’s another discussion. In any case, let’s move on to Tosafot’s answer. So up to this point we were dealing with the question. It took me a very long time. “And the Riv"a answered: since he stuck it in within the speaking time of the warning, and it will certainly bake if he does not take it out, this is not an uncertain warning, because he certainly did not have in mind to take it out before it baked.” What is he saying here? Simply speaking, it seems that he is talking here about a psychological assessment of what the person’s intentions were. And what he is basically saying is this: if right now you didn’t take it out—in practice, after all, you didn’t take it out, right? Because if in practice you had taken it out, then the question wouldn’t arise. The question arises only in a situation where he did not take it out, and now the question is on the table whether to stone him or not, right? Because if he took it out in the middle and the bread did not bake, then there is no point entering the question whether this is an uncertain warning or not; there was no transgression. Only if there was a transgression do we begin to discuss the nature of the warning—whether the warning was an uncertain warning or not. So we are talking about a case where in the end you in fact did not take it out. If you didn’t take it out, then the assumption is that apparently even when you stuck it in, you did not intend to take it out. More than that—and this, I think, is more likely the Riv"a’s intent—if you stuck it into the oven right after they warned you, then why did you stick it in there? You stuck it in there so that it would bake. Don’t tell me stories that you stuck it in and intended to take it out after five minutes. What are you playing at with sticking bread into the oven—a competition with your neighbor? You do it in order to have bread; you want to bake the bread. But if you take it out, it won’t bake, so why did you stick it in? Rather, if you stick it in after the warning, apparently you intended to stick it in and also to leave it there. Therefore this is not an uncertain warning. That’s what the Riv"a answers. Okay? Yes, and again, one could have formulated this in probabilistic terms and said: all in all, this really is my assessment of his intentions. If he stuck it in, he probably also intends for it to bake. That’s an estimate of a person’s intentions, a psychological assessment of what a person intends, and it sounds very reasonable. Here too it could have been formulated in the language of presumptions. And one could have said: if when you stuck it in, there was already a warning and you nevertheless decided to stick it in, then our assumption is that you will probably continue, that you probably also intend for it to bake. Not because we really think that you intended not to take it out, but because that is the halakhic assumption. So long as it has not been proven otherwise, we will assume that you intended not to take it out. Notice that the Riv"a’s answer here speaks about the question of what his intention was when he stuck it in. There is still a possibility that he may actually take it out, but that is no longer called an uncertain warning, right? We already discussed that. The mere possibility that he might take it out is not called an uncertain warning. What matters to me is what his intention was from the outset. If from the outset his intention was to take it out—and I discussed this in the previous class, in Tosafot’s question—then in order to explain that this is an uncertain warning, Tosafot had to assume that from the outset, when he stuck it in, he intended to take it out, right? We asked there: why did Tosafot need that? Just the fact that afterward he can take it out makes the warning an uncertain warning, regardless of his intentions. The very fact that he can avoid stoning makes it an uncertain warning. Tosafot assumes not. Meaning, if his intention was not to take it out, then true, afterward he can change his mind, he can do all kinds of things and still take it out—that will not be considered an uncertain warning. We saw that in the previous class. Tosafot here continues in that line of thought, and therefore Tosafot says this: let’s do the calculation. We have two possibilities. Either from the outset he intended not to take it out, and then of course this is not an uncertain warning—that’s obvious. What was Tosafot’s reason for saying this is an uncertain warning? Because maybe indeed his intention was to take it out, only he forgot, and therefore he did not take it out, right? Tosafot says: I have proof that it is not true that his intention was to take it out. Because a person who sticks bread into the oven, especially after being warned, clearly does not intend afterward to take it out, because otherwise why did he stick it in? Clearly he intends to stick it in so that he’ll have bread. And therefore there is no concern that his intention from the outset was to take it out; rather his intention was not to take it out. I can still ask: fine, but in practice he can afterward take it out. Tosafot already told us in the question that that doesn’t interest us. If from the outset his intention was not to take it out, this will not be considered a warning—an uncertain warning. I don’t care that afterward he can take it out, just like with an olive’s bulk of bread—sorry, an olive’s bulk of carrion. Now we come to the similarity to an olive’s bulk of carrion in the Birkat Avraham. Just as with an olive’s bulk of carrion, when I warned him and he started eating the first half-olive, there is always a possibility that he won’t eat the second half. That is even a more plausible possibility than here. Maybe he only wants half an olive’s bulk, right? And there, if he stuck it in, it is clear that he intended also to leave it there. And still we have no concern there, right? That is not considered an uncertain warning. Why? Because the assumption is that if you started eating despite the fact that there was a warning here, you intended to eat. That’s all. And we do not assume that in the second half you did not intend to. But on the other hand, I could have refrained from eating the second half even if I originally intended to eat a full olive’s bulk. In practice, after all, I could have refrained from eating the second half. That doesn’t interest us. Such a thing is not called an uncertain warning. An uncertain warning is determined by the question of what your intention is at the moment of the warning. That is what matters. It doesn’t matter what you do afterward when you change your mind. That doesn’t interest us. Why doesn’t it interest us? Because if at the moment of the warning you intended to eat an olive’s bulk, or you intended to stick it in and leave the bread there, fine—then there is a presumption that this continues afterward as well. And it doesn’t interest me what will happen afterward. The presumption is that this also continues afterward. If in practice you do something else—if you don’t eat the second half or if you do actually take the bread out—then of course you will not incur punishment. But you will not incur punishment not because the warning was an uncertain warning, but simply because there is no transgression on which to punish you. You did not commit the transgression. The bread did not bake, or you did not eat an olive’s bulk of carrion. Therefore this is not connected to the laws of warning. From the standpoint of warning, what matters to me is not what will happen in the end. What matters is what may happen in the end, or what you planned to do in the end. That’s all. And if I reached the conclusion that the person planned to commit the transgression, then now the burden of proof is on him if he wants to claim that in the middle he forgot and that really he intended to take it out and forgot. No—if you stuck it in, apparently you did not intend to take it out. That is Tosafot’s answer. Now Tosafot goes on to say:

[Speaker B] Meaning, in such a case where there is a presumption, then the burden of proof is on the transgressor and I don’t care about the offender?

[Rabbi Michael Abraham] Okay, the burden of proof is on the offender. If you want to exempt yourself, bring proof. Fine? Now he continues.

[Speaker B] Meaning if there are witnesses and so on, he has to prove the opposite.

[Rabbi Michael Abraham] Correct. Now he says—I continue reading in Tosafot: “And it is only an uncertain warning in the case of one who takes the mother bird together with the young, according to the one who says in the chapter ‘These are the ones who are flogged,’ ‘he nullified it or did not nullify it,’ because perhaps he will not break her wings or not slaughter her. Now when he breaks her wings they cannot warn him, because warning is only on the prohibition, and regarding the prohibition he has already transgressed.” What is he saying? We’re talking about someone who takes the mother bird together with the young. Fine? In principle, after all, he can fix it. He can send away the mother. Then there is no problem; he repairs the prohibition that he transgressed. When can I be sure that he can no longer repair the prohibition? If he breaks the mother’s wings. Sounds a bit cruel, but this is a theoretical discussion. She can’t fly. If he breaks the mother’s wings, then he can no longer send her away; she can no longer fly. In such a situation, you can already administer lashes to him, right? Because here it is already clear that he can no longer repair the wrong; he can no longer send away the mother. So long as he still has the possibility of sending away the mother, you cannot lash him for taking the mother bird, because perhaps he will send her away and thereby repair the prohibition he committed. But if he has already broken the wings, this is called “he nullified it or did not nullify it.” If he has already broken the wings, then you can be sure that this prohibition will no longer be repaired. Fine? And then what? But, Tosafot says, in such a situation you can’t warn him. What—when would you warn him? You keep warning him, but how do you know? Maybe he’ll send away the mother in a moment. When you see him breaking the wings, you can’t warn him before the breaking of the wings, because before the breaking of the wings it’s already too late—the prohibition was transgressed when he took the mother bird together with the young. You can’t warn him now before he breaks the wings. And if you warned him then, you can’t know whether he will later break the wings or send her away. And therefore such a thing is called an uncertain warning. Okay?

[Speaker E] I want to understand the situation for a moment. The prohibition of not taking the mother bird together with the young means that he first has to send away the mother and then take the young, right? And if he took the young without sending away the mother, he can fix it by now sending away the mother? Yes. It’s a prohibition linked to a positive commandment.

[Rabbi Michael Abraham] “You shall surely send away the mother, and the young you may take for yourself.” So there is a prohibition: do not take the mother with the young. But one who transgressed—it’s like robbery—one who transgressed the prohibition has a positive commandment that can repair the prohibition. That is called a prohibition linked to a positive commandment, which is repaired by the positive commandment.

[Speaker E] It’s like what we brought regarding leftovers. Exactly.

[Rabbi Michael Abraham] Fine, leftovers are also an example of that, right. Okay. So he says that in such a situation this is an uncertain warning. But in our case it is not an uncertain warning, because once he stuck the bread in, it is clear he is also going to leave it there. When he took the mother bird, is it clear he is going to break her wings? Of course not—who said such a thing? It may be that he is going to—he took the young, sorry—who said he won’t send away the mother in a moment? Therefore there it is an uncertain warning; in our case it is not an uncertain warning. There’s another example too, also regarding an oath, yes. Fine, so.

[Speaker B] But here there is some kind of reverse action. Meaning, after all, he has to first send away the mother and afterward take.

[Rabbi Michael Abraham] Correct, but if he transgressed and did not—

[Speaker B] can’t you give him a warning after he took the young and tell him to send away the mother? That’s not okay.

[Rabbi Michael Abraham] Ideally, he has to send away the mother first. It’s clear that what he did was wrong. But the Torah says: if you violated this prohibition, I’m giving you a way to fix it. If you send away the mother after taking the chicks, that also works. Okay. So now, since there is always the possibility of fixing it and then you don’t get lashes, how can they ever give you lashes? They can’t give you lashes, because there is always the possibility that maybe you’ll repair the prohibition. Unless—there is one possibility—if I break the mother’s wings, then I can no longer send her away. Tosafot says: true, but how can they warn him? After all, if they warn him in advance, there is always the possibility that maybe he’ll send away the mother. If they warn him right before he breaks her wings, then by that point it’s already too late, because he committed the transgression when he took the mother, not when he broke the wings. Breaking the wings only ensures that he won’t be able to repair the transgression, but when did he actually violate it? When he took the mother. So the warning has to come before he commits the transgression, not before he breaks the wings. And therefore Tosafot says: this is a case of uncertain warning. In our case it isn’t uncertain warning. Okay. Now look, though, in the end he says—maybe let’s read on. And likewise in the case of an oath: “I will not eat this loaf if I eat that one.” Right: I won’t eat loaf B if I ate loaf A. And he ate the forbidden one, and then afterward he ate the conditional one. There’s the forbidden loaf and the conditional loaf. Right? The conditional loaf is the loaf such that if I eat it, then it becomes forbidden for me to eat the forbidden loaf. Okay? So there is the conditional loaf and the forbidden loaf. So he eats the forbidden loaf, and then afterward eats the conditional loaf. If I ate the forbidden loaf, then in the meantime I still haven’t committed any prohibition, because if I don’t eat the conditional loaf, then there is no prohibition against eating the forbidden loaf, right? That prohibition only applies on condition that I eat the conditional loaf. So if I ate the forbidden loaf and afterward ate the conditional loaf—again, same problem. If they warn me before I ate the forbidden loaf, what do you want from me? I just won’t eat the conditional loaf, and then there’s no prohibition and no problem. So what are they supposed to do—warn me before I eat the conditional loaf? But eating the conditional loaf is not the prohibition. The prohibition is eating the forbidden loaf. Eating the conditional loaf only turns that earlier eating into a prohibited act. Again, this is exactly the same situation as sending away the mother bird: you can’t give a proper warning; it’s uncertain warning. Since they warn him at the time he eats the forbidden loaf, there is still a further act missing—the eating of the conditional loaf—before he can become liable for lashes. But here, when he sticks bread onto the oven wall, the baking is not lacking any further act. What’s that? Suddenly it’s a different formulation. Notice that there are two formulations here; he switches formulations. Tosafot’s first formulation is that clearly from the outset he intended not to remove it, right? Otherwise why did he stick it on? Right? This is not uncertain warning—look at the second line in the highlighted section: “It is not uncertain warning, because certainly he did not intend to remove it before baking.” Right? Meaning: how does he explain why in our case this is not uncertain warning? Because our assessment is that he did not intend to remove it. What is he saying here? Here it’s a psychological assessment, right? How does he explain it here? Here he says that in our case it is not uncertain warning because the baking is not lacking any further act. What does that have to do with the baking not lacking any further act? Which one of you was saying—let’s say that in order to keep the bread stuck in the oven I had to keep doing something physically. Suppose, just for the sake of discussion, that I had to hold the bread there the whole time so it would stay attached in the oven. Fine, just for the sake of argument. Okay. Then according to Tosafot’s later formulation, that would be uncertain warning, right? Because then it would indeed be lacking an act. According to Tosafot’s first formulation, it still wouldn’t be uncertain warning. Why? Because if I stuck it on, then clearly I also intended that the bread should bake. What difference does it make that I have to keep holding it the whole time? I intended to keep holding it. You see that there’s a difference in formulation here? No, first of all I want to say—I thought I understood what “lacking an act” means, but maybe I didn’t understand it correctly, so I’d be happy if you explain. “Lacking an act” means that the second stage that is still missing before I can determine that the person is liable for punishment is a stage that requires action. It’s not something that happens on its own. So why is baking not “lacking an act”? I don’t understand. He finished the act by sticking it on; what further act does he still have to do? From that point on, the oven bakes by itself. So the baking is lacking an act? No. “Lacking an act” means that another act of his is still missing in order for him to become liable. Here, no act of his is still missing in order for him to become liable. He becomes liable on its own. “The baking is not lacking an act”—again, what does that mean? Liability for the prohibition of baking is not lacking any act of the person. Even without any action by him, he will become liable. He will become liable automatically. He does not need to do anything in order to become liable. The baking is completed without him; it is completed without any specific act. In the case of the oath, in order to become liable under the oath he has to do an act, namely eating the conditional loaf. Without doing that act, he does not become liable for eating the forbidden loaf. So there it is lacking an act. In other words, there is still an act he must do in order to obligate him. In the case of sticking bread in the oven, no act at all is missing. The only thing missing is: wait for the time to pass, and once you wait for the time to pass, he becomes liable. Okay? In this formulation it sounds like he means a completely different answer: that in fact sticking it on is the prohibited act, and what happens afterward is some kind of condition. And since he was warned at the time he stuck it on, this is not uncertain warning. Because the prohibited act is already finished, and that act he definitely did as a prohibited act. If I say that this is an uprooting condition, then of course it’s even clearer, right? If the condition is an uprooting condition, then there was a warning here and a prohibited act—and this is the Rivash, remember? The Rivash who gives this answer here is the same Rivash who has been with us throughout this whole topic. We’ve already run into him twice. All along we saw that the Rivash holds like the Rashash, that sticking the bread on is itself the prohibition. Only afterward can you save yourself if you remove it. So the Rivash says: then why should I care? In the end, he was warned and performed the prohibited act after the warning. That is not uncertain warning. The fact that afterward he can remove it and save himself—that’s a different matter; it has nothing to do with the prohibition. What does that have to do with uncertain warning? So he didn’t remove it. In the case of the oath, what is missing there is an act—not just something that happens by itself. In that situation there is uncertainty whether he will perform the act or not, the act of eating the conditional loaf. Since it depends on him, that is uncertain warning. In our case it doesn’t depend on him. What depends on him is whether maybe he will save himself, but it does not depend on him whether he will become liable. Okay? So that is the formulation at the end of Tosafot. But the formulation at the beginning of Tosafot is talking about something completely different. The formulation at the beginning of Tosafot just says that my assessment is that when he intended, he intended not to remove it—to let the bread bake—because otherwise, why did he stick it on? It has nothing at all to do with the question whether this is an act or not an act. Even if another act were later required, it is still completely clear to me that he intended that. Let’s see how I would formulate the answer in the case of the oath. Right? I want to distinguish it from the oath case. I ate the forbidden loaf and afterward I ate the conditional loaf. There I would simply say: when I ate the forbidden loaf, there was no necessity at all that I intended to eat the conditional loaf, right? On the contrary, it is much more likely that I did not intend to eat the conditional loaf. Why would I eat the conditional loaf and turn my previous act of eating into an act that makes me liable for lashes? Quite the opposite. The logical and simple explanation is that I did not intend to eat the conditional loaf. Therefore there it is uncertain warning. But in the case of sticking bread onto the oven wall, if I stuck it on, then clearly I also intended that it should bake; otherwise why did I stick it on? Right? That’s how I would formulate the distinction from the oath case. But Tosafot doesn’t formulate it that way. Tosafot says: “But here, when he sticks bread onto the oven wall, the baking is not lacking any further act.” The distinction is not the question of what you intended from the outset, but what is still missing until the stage at which you become liable for punishment. That is a completely different distinction. Can I ask a naïve question? Yes. No, something here isn’t fitting together for me. A naïve question—what is that? What is that, yes. Right. The forbidden loaf and the conditional loaf. Could you go back over what was said before, about the part where I made a condition so that I won’t eat? I’d be happy to go over it again; it’s not organized in my head. Someone made a vow, okay? He forbids loaf A to himself if he eats loaf B, okay? On condition—like “if it rains,” or “if my wife annoys me,” I can make my vow dependent on certain acts; I can make a vow conditional. Okay? Now in this case, like we said regarding the divorced woman and the wine, supposedly? Right, right. Just as one can divorce conditionally, one can also vow conditionally. Now what condition did he make? The condition is that he will eat loaf B. Meaning, if he eats loaf B, then loaf A will be forbidden to him. Okay? So to identify the loaves, instead of A and B I’m calling them the forbidden loaf and the conditional loaf. Okay? Thank you very much. Now he ate the forbidden loaf first. But if he eats the conditional loaf afterward, then it turns out that the forbidden loaf that he ate had been forbidden to him. But he ate the forbidden loaf first; at the time he ate it, we still don’t know that it is forbidden. It depends on what he will do with the conditional loaf. That is the discussion there. Now in that case it is clear that the assessment of what his plans are regarding the conditional loaf is completely different from the case of sticking bread in the oven. If he ate the forbidden loaf, and you asked me what he plans—does he plan to eat the conditional loaf? I would tell you probably not. Is he crazy, to go get himself lashes? He probably does not intend to eat the conditional loaf. In the end it turned out that he did eat the conditional loaf, but my assessment beforehand was that he did not intend to eat the conditional loaf. So there I understand why this is uncertain warning. In the case of sticking bread in the oven, he stuck in the bread. Now I ask: what did he intend—to leave the bread there or to remove it? I would answer: to leave it there. Why? Why did he stick it on? He stuck it on so that it would bake; why else would he stick it on? So there is a difference in assessment here. So the first formulation of Tosafot—you see what he writes here, “certainly he did not intend to remove it before baking”—in that formulation I would… But the question is whether he intended to bake on the Sabbath too; it’s not just a matter of baking in general. What? The question is whether he also intended to bake on the Sabbath; it’s not just baking in general. Obviously anyone who puts something in the oven wants to bake it. No—if he stuck the bread on the Sabbath morning, and let’s say it takes half an hour to bake, then obviously that means baking on the Sabbath. If he stuck it on close to the end of the Sabbath, then that’s what we discussed—that really is the dispute between the Rashash and the Minchat Chinukh. But we’re not talking about those extreme cases; we’re talking about an ordinary case. He stuck it on on Sabbath morning, and half an hour later it’s ready. Okay? I think the whole thing is a matter of probability assessments, and when it is lacking an act, he has no way of proving that he intended otherwise. Meaning, the whole question here is how far we assume with one hundred percent certainty that he really acted intentionally. And in the end, if he has an act through which he can prove it, then there is some kind of measure, but when it is lacking an act—in our case, sorry, in our case of the baking, because he has no further act to do, there is no way to prove, once he has stuck it on and there is no other action he still needs to do, that he plans to remove it. So you’re saying the opposite. In our case this is not uncertain warning; in the oath case it is uncertain warning; in the case of sticking it on, it is not uncertain warning. Your distinction is the opposite. Also in our case it is not uncertain warning, because the probability here indicates that he intended it deliberately. Exactly, but that has nothing to do with lacking an act. Rather, if he stuck it on, then he probably intended to leave it there. What does that have to do with the question of whether, if he had needed to keep his hand there the whole time to hold the bread in the oven, that would be lacking an act? Then I still wouldn’t assess that he was doing it so the bread would bake. What difference does that make? These are two completely different distinctions. Tosafot really changes formulation from the beginning of the answer to the end of the answer. I don’t have an explanation; these really are two different answers—unless Tosafot means them cumulatively. Maybe Tosafot means to say that for this to count as a warning that is not uncertain warning, two things have to be true: first, that it not be lacking an act, and second, that it be clear that from the outset I intend for the whole thing to be completed. Maybe that is what Tosafot means. But then I would have expected him to say both together—that there are two conditions, and the two conditions are such-and-such. But he says the first condition at the beginning, and then suddenly he ends with a different formulation. Strange Tosafot. But it doesn’t matter for our purposes. Each of the answers can work. Each of these two answers—even if they are two separate answers—can definitely explain why in our case this is not uncertain warning. Fine. I’m going to skip the difficulty from leftover sacrificial meat, because I want us to get to Rav Shmuel at the end. Rav Shmuel talks about the question: what is wrong with uncertain warning? Why is uncertain warning a problem? Up to now we’ve discussed what uncertain warning is, when something counts as uncertain warning and when not. But there is another question: suppose we conclude that something is uncertain warning. Why is that defective? Why is that not a valid warning? What exactly is the problem? So he says like this: “I have been unsure regarding the rule that uncertain warning is not considered warning.” That itself is problematic, because it is considered warning. In the end, we rule like Rabbi Yohanan. And I told you all along this whole topic seems really strange to me. We rule that uncertain warning is warning, and yet everyone talks as though uncertain warning is not warning. So he says like this: “I have been unsure regarding the rule that uncertain warning is not considered warning.” Let’s say he is unsure according to Reish Lakish, fine? Whether it is a deficiency in the warning. Wait, wait—I understood that Rabbi Yohanan says uncertain warning is warning, meaning it eliminates the concept of uncertain warning. Okay, meaning there is no such thing as uncertain warning. No, but here he says uncertain warning is not warning, so that’s not according to the practical ruling? He is probably asking the question according to Reish Lakish. Okay, fine. So he says: is it a deficiency in the warning—what’s the problem with uncertain warning? It’s just an invalid warning, so it’s as though he sinned deliberately but without warning. Or maybe it is a deficiency in the deliberateness of the transgression. The problem isn’t that you committed the transgression deliberately but lacked warning; rather, you are not considered deliberate. That is the problem with uncertain warning. Since at the time of doing the act we are uncertain whether he will transgress or not, it could be that we are also unclear regarding him himself—whether he is really committing a fully intentional transgression—so the deficiency is in the deliberateness, not in the warning. And that’s what he says: the phrase “uncertain warning” only means that he does not know whether he is transgressing or not. That is, I am not sure whether he is acting deliberately or not. And therefore, even for a learned person according to Rabbi Yosei son of Rabbi Yehuda, who does not require warning—you remember that a learned person does not require warning according to Rabbi Yosei son of Rabbi Yehuda—he too would be exempt. That is the practical implication. What is the implication of his discussion? What happens in the case of a learned person? A learned person is obviously deliberate, right? That is why according to Rabbi Yosei son of Rabbi Yehuda, a learned person doesn’t need warning. Okay? Yes. Wait. But we said he too could forget or not know this exact law. Certainly—that is why the conclusion is that a learned person does need warning. But according to Rabbi Yosei son of Rabbi Yehuda, a learned person doesn’t need warning. He is talking according to Rabbi Yosei son of Rabbi Yehuda, okay? So a learned person does not need warning. Now suppose I gave that learned person an uncertain warning, okay? If “uncertain warning” means I did not give warning, then who cares—even in the case of a learned person? A learned person doesn’t need warning anyway, so even with uncertain warning I should punish him. But if uncertain warning is only an indication that he is not completely deliberate, then perhaps even in the case of a learned person I still could not punish him. This whole thing is very strange, because—as I’ll say in advance—in the end we already concluded that according to all views, the purpose of warning is to verify deliberateness; it has no other purpose. So what is the difference between saying the deficiency is in the warning and saying the deficiency is in the deliberateness? It’s the same thing. Suppose there is no deficiency in deliberateness—he is fully deliberate—but there is a deficiency in warning. Seemingly he should still get lashes, because the whole point of warning is only to verify that he is deliberate. So if I have other indications that he is deliberate, and the warning was not a perfect warning, but I know that he is deliberate, then why should I care? Bottom line: if he is deliberate, he gets lashes, right? Certainly according to Rabbi Yosei son of Rabbi Yehuda, where a learned person does not need warning—he gets lashes even without warning, if he is a learned person. So what’s the problem? Now look, here in the Tumim—the Tumim discusses this regarding disqualification from testimony. Someone who committed a transgression deliberately is disqualified from testimony. If he committed a transgression deliberately—a certain kind of transgression, doesn’t matter which—he is disqualified from testimony. What if someone committed a transgression deliberately, but the warning was uncertain warning? The Tumim discusses this question. That is what Rav Shmuel brings from the Tumim. He says: I had thought to say that the deficiency is in the very deliberateness of the transgression, and not specifically in the warning aspect. However, I saw in the Tumim, in the laws of testimony, that he wrote that one who violated a prohibition involving uncertain warning is disqualified from testimony, for he is no worse than one who violated a prohibition and was not warned, and it is not considered like a prohibition that carries no lashes. Right, not lashes: someone who violated a prohibition that carries no lashes is not disqualified from testimony. But someone who violated a prohibition that does carry lashes, with uncertain warning—seemingly he did in fact deliberately violate a prohibition. Seemingly he becomes unintentional—what? Seemingly he becomes unintentional, and nevertheless he is disqualified from testimony? Yes. And therefore the Tumim argues—the Tumim says that he is nevertheless disqualified from testimony. Why? You see that there is no deficiency here in deliberateness, right? Because if there were a deficiency in deliberateness, he would not be disqualified from testimony. Rather, it is a deficiency in warning and not in deliberateness. What is the practical difference? The practical difference is that we would not punish him, because there is a deficiency in warning, but there is no deficiency in deliberateness. For disqualification from testimony, it is enough that he is deliberate. For punishment, you also need a perfect warning; it is not enough that he is deliberate. But understand: there is something really strange here. The Tumim continues Rav Shmuel, because what do you see from the Tumim? You see from the Tumim that warning has some role beyond verifying that you really acted deliberately—against everything we learned, right? You see here that a person can be fully deliberate, and therefore I disqualify him from testimony, because he is a deliberate wicked person, and still I do not punish him because warning is missing. I don’t understand. Warning was only given in order to distinguish between accidental and deliberate. If you’ve concluded that he is deliberate, then why should I care that warning was not given? You should still be able to punish him, not just disqualify him from testimony. There is a real difficulty here. So look, I referred you—and this is what I corrected in the latest version—to the Derashot HaRan. Right, and this is a major lesson. I don’t have much time, so I’ll do it briefly, but it’s a major lesson for many places where we think in a dichotomous way. Basically we say either he is deliberate, and then he should both be disqualified from testimony and punished, or he is not deliberate, and then he should neither be disqualified from testimony nor punished. How does the Tumim create an intermediate case, where he is disqualified from testimony but not punished? What is there in warning beyond verifying that the person basically sinned deliberately? After all, warning was only given for that purpose. So in the Derashot HaRan he basically says: no, there are different levels of deliberateness. Deliberate is not just yes-or-no; it depends how deliberate you are. In a case where I have a fairly good basis for thinking that you are deliberate, but I’m not certain, then for punishment I cannot punish you. As I said earlier, in order to punish someone you need to meet a very high standard; even the slightest doubt prevents punishment. So when I assess that someone is deliberate, but there was no warning, or there was uncertain warning, then my certainty that he is deliberate is not complete. For purposes of punishing him, that is not enough. If you ask me whether he is disqualified from testimony, the answer is yes, because for disqualifying him from testimony a lower standard is required. If it is clear to me that he is deliberate, even if not one hundred percent clear but only ninety percent, that is enough to disqualify him from testimony. And therefore I think it is not correct to read the Tumim and Rav Shmuel as saying that warning is some formal requirement with no logic behind it, contrary to what we see in the Talmud—that warning comes to verify deliberateness. There, what we would be seeing, seemingly, is: no, no, it’s a formal requirement with no logic behind it. No. It is a requirement that says I need one hundred percent certainty and ninety percent certainty is not enough. But it is still on the same axis of verifying the level of deliberateness. Clearly, the function of warning is to verify the level of deliberateness, that’s all. And therefore what the Derashot HaRan writes here—and it’s a fascinating discourse of his, I recommend everyone read it for many reasons, but here I pulled out one section dealing with warning—the Ran basically says that if we were to run a state according to the halakhic rules we learned, that would be a sure recipe for destruction. You cannot run a state according to Jewish law; that is basically what the Ran says in that discourse. Why? Because Jewish law imposes impossible requirements in order to punish people. How will you create deterrence? Whenever you warn someone, he is never going to say, “Yes, and that is exactly what I intend to do,” because he isn’t crazy enough to get punished. He will continue committing the transgression calmly and peacefully in front of witnesses and with warning—he just won’t accept the warning, and he will go free. How are you going to deter criminals? How are you going to prevent crime? Therefore, says the Ran, for that we have what he calls the king’s justice. And the king, unlike the religious court, operates by different rules, and the king will punish a person even when there is only ninety percent certainty that he acted deliberately; he does not need one hundred percent certainty. If the king assesses that he transgressed deliberately, he will be punished, and the king’s role is deterrence. From here we of course learn that punishments administered by the religious court apparently do not have a deterrent function; perhaps they have an educational function, but not a deterrent one. Okay, but these are really lessons that need to be discussed separately. For our purposes, what the Ran says is that he succeeds in explaining how we can understand that someone is deliberate even if he did not receive warning, or if he received uncertain warning. And if he is deliberate, then why don’t we punish him? The answer one can give on the basis of the Ran is: he is deliberate to the level of ninety percent. We have that ninety percent certainty that he is deliberate, but we cannot be fully certain. For punishment in a religious court—not in the king’s justice—punishment in a religious court requires one hundred percent, and without warning you do not have one hundred percent. For disqualifying him from testimony, ninety percent is enough, because what you want is reliable testimony. If there is a ninety percent chance that he is wicked, that is enough to say: listen, this is questionable testimony. When this person says something, as far as I’m concerned that is questionable evidence, and therefore it is enough to disqualify him from testimony. You ask what happens in practice? How is it that not all people will escape punishment, and we will still manage to prevent crime? For that, there is the king. The king will also punish him based on ninety percent, with uncertain warning; the king will punish him even though the religious court cannot punish him, because if the king assesses that the person committed a transgression deliberately, he will punish him even if the halakhic conditions were not met. But that is a parallel legal system, the king’s justice; it is not the judicial system of the religious court. Okay, I really did this—it took me a long time—a topic with lots of nuances, and I didn’t get to all the details. You can read it in the summary, but next time I’m going to move on. The next class will deal with the question whether we say to a person, “Sin so that your fellow may benefit,” and with that we’ll finish the chapter in the Talmud. So nothing on Hanukkah came out? What? Nothing on Hanukkah came out? We didn’t get to Hanukkah. Hanukkah—a little Hanukkah. We didn’t get to Hanukkah. I was just thinking that if there were time left—let’s see, I’ll think about it. But we could open with Hanukkah, with another class on Hanukkah, but a little more fully, including the source sheet and everything, meaning do the whole thing. Yes, yes, that would be very nice, yes. Yes, okay, I’ll think of something, all right? I hope I’ll manage, we’ll see. Okay, good, thank you very much. Happy Hanukkah.