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Table of Contents
- [0:00] Introduction to the passages in Kiddushin and Shevuot
- [4:37] The common denominator — a central concept
- [8:47] The assumption of simplicity versus complex theories
- [10:34] The strengthening effect of three occurrences for an ox
- [14:02] The absence of a common denominator in the categories of labor on the Sabbath
- [16:51] The Talmud in Bava Kamma on the common denominator
- [27:15] Conceptual construction and scientific intuition
- [29:31] Winnowing — primary categories of labor on the Sabbath
- [32:07] Combining winnowing and throwing — spitting
- [33:48] Expanding the labors — combination and multiplication
- [39:55] Or Sameach — the Yom Kippur Temple service
- [41:40] The dilemma of frequent versus holier among commandments
- [47:12] Yom Kippur falling on the Sabbath — determining Jewish law
Summary
General Overview
The text presents the “common denominator” in the Mishnah of the four primary categories of damages as a mechanism of generalization that isolates a binding shared feature from a variety of cases, and explains how the Talmud uses it to impose liability for damaging agents that do not fully resemble any single primary category. From there it distinguishes between a “multiplicative” common denominator, which looks for the shared intersection of two source cases, and another move called here “conceptual construction,” in which one combines an element from one source case with an element from another and creates a third law without a clear substantive shared feature. The central examples are one’s stone, knife, and burden in Bava Kamma, learned from fire and pit, and spitting / carrying four cubits by means of the wind on the Sabbath, constructed from winnowing and throwing. Later there is an example from Or Sameach about the additional Sabbath offerings on Yom Kippur and its implications for the question of Kiddush for a sick person on Yom Kippur that falls on the Sabbath.
The Common Denominator in the Four Primary Categories of Damages
The Mishnah in Bava Kamma lists four primary categories of damages and explains that one cannot derive one category from another, because each category has an aspect of stringency and an aspect of leniency, and therefore each is needed independently. The Mishnah concludes that their common denominator is that they tend to cause damage and their safeguarding is your responsibility, and when damage occurs the one who caused it is liable to pay compensation from the best land. The meaning is that the liability rests on a shared underlying basis and not on the unique properties. The explanation presents fire as having the stringency that “it tends to go and cause damage” and the leniency that “another force is involved in it,” while a pit is static and therefore lighter in one sense, but “its initial formation is for damage” and therefore more severe in another sense, and similarly for the other categories. The analysis assumes a preference for one simple explanation rather than an accumulation of separate explanations for each case, and an analogy is given to scientific generalization by canceling irrelevant parameters through varied examples.
“What does this include?” and extending liability to new damaging agents
The Talmud on page 6 asks about the Mishnah’s concluding phrase, “their common denominator” — “what does this include?” — on the assumption that the generalization comes to include cases that cannot be learned from a single primary category. Abaye explains that the inclusion covers one’s stone, knife, and burden that he placed on top of his roof and they fell in a normal wind and caused damage. If they caused damage “while moving,” then “that is just fire,” because another force is involved in it and it is your property and its safeguarding is your responsibility, so there is no need for a common denominator. If they caused damage “after coming to rest,” they resemble a pit. But the Talmud rejects that: “How is a pit different? A pit has no other force involved in it; can you say the same about these, where another force is involved in them?” Then it brings “fire proves otherwise,” since another force is involved there too and yet one is still liable. Again this is rejected: “How is fire different? It tends to go and cause damage,” and then “pit proves otherwise” is brought, and a “the law returns” structure is created from which the liability for the intermediate case is learned. The structure presented here is one of two source cases, each of which negates the relevance of a unique feature in the other, until only the shared feature remains as the basis of the law.
Comparison to the Sabbath and the question of the absence of a common denominator among the thirty-nine labors
It is argued that unlike damages, in the laws of the Sabbath there is no derivative labor that is a derivative of two primary categories, and therefore there is no need for the Mishnah to conclude with a generalization of “the common denominator” for the thirty-nine labors. A possible explanation is suggested: when there are many primary categories, the “resolution” is higher, and so the chance is smaller that a derivative category will appear “in between” and require two source cases. But this remains only a hypothesis. A dispute among the medieval authorities (Rishonim) is also mentioned as to whether there is a unifying principle for the Sabbath labors, in the style of the dispute between Rashi and Tosafot over the existence of a generalization such as “creativity on the Sabbath,” and the inclination is to say that the Mishnah does not need this because there is no derivative labor dependent on such a generalization.
The formal structure of a common denominator versus a case with no shared side
A schematic diagram is presented in which the common denominator functions like a “product” or intersection of a shared feature belonging to the two source cases and also present in the learned case, while the unique properties (such as X and Y) are canceled as possible explanations. A contrasting diagram is also presented in which the two source cases have opposite properties with no common component of type Z, and then one cannot make an inference of the common denominator type. Along the way it is said that theoretically there are infinitely many common sides, but one looks for relevant sides, and the filtering is done through logic and intuition, much like in the natural sciences.
Conceptual construction: spitting on the Sabbath from winnowing and throwing
A passage is brought from the Jerusalem Talmud saying that one who spits on the Sabbath is liable, and Biur Halakhah cites the book Alfei Menasheh (Rabbi Menashe of Ilya) explaining that this refers to carrying four cubits in the public domain by means of the wind. The principle is constructed by combining winnowing, where the wind assists and one is nevertheless liable, with throwing / carrying four cubits, where the very act of carrying four cubits creates liability, and thus a third labor is created in which the actual transfer is carried out by the wind. It is said that this can be formulated formally like a common denominator, but that is “formal only,” because there is no substantive shared Z between winnowing and spitting. Rather, one takes “an element from winnowing” and “an element from throwing” and joins them together. The distinction is formulated as follows: “on the right side this is multiplication,” where one takes what is shared, while in the new move “this is combination,” where one takes דווקא what is different from each source case and assembles a new law from it.
Purposeful labor, wind, and the difference between the Sabbath and damages
It is said that this move depends on an approach that appears in Bava Kamma 60 regarding the question why on the Sabbath one is liable for an act done with the help of wind, while in damages one is exempt because it is only indirect causation. Rav Ashi is cited as answering, “The Torah prohibited purposeful labor,” and Rashi explains that if in the end his intention was fulfilled, it does not matter that it was done through the wind, whereas the Rosh distinguishes and argues that the novelty is limited to winnowing, because that is its normal manner. It is said that Minchat Shlomo goes in a direction that fits Rashi’s principle, and that the case of spitting was brought as an anecdote rather than as the accepted explanation, but it illustrates the mechanism of combining two different elements into a single liability.
Or Sameach: the additional Sabbath offerings on Yom Kippur and the implication for Kiddush for a sick person
Or Sameach, in the laws of the Yom Kippur service, explains that according to Maimonides the additional Sabbath offering when Yom Kippur falls on the Sabbath is performed by the High Priest, even though the Sabbath additional offering in itself is valid with an ordinary priest. Or Sameach suggests proof from Zevachim, in the chapter Kol HaTadir, from the language “Does Rosh Chodesh help only for its own additional offerings and not for the additional offerings of the Sabbath?” from which it emerges that the Sabbath additional offerings on Rosh Chodesh “are sanctified with the sanctity of Rosh Chodesh,” and therefore here too “the additional offerings of the Sabbath are sanctified with the sanctity of Yom Kippur,” and their commandment is therefore with the High Priest. From this he concludes that “the sanctity of Yom Kippur applies to the Sabbath as well,” sanctifying it through abstention from all eating, and therefore when Yom Kippur falls on the Sabbath, a dangerously ill person who must eat does not recite Kiddush even for the Sabbath. A story is brought about the Avnei Nezer as a child, when he was asked whether he had made Kiddush on Yom Kippur when he ate, and he answered that there is no obligation of education for Kiddush in a place where, when he is grown, he would not eat. It is said that in practice the tendency is not to make Kiddush on Yom Kippur even for one who eats, but the question when Yom Kippur falls on the Sabbath is disputed.
A third entity in the combination of sanctities: the Rogatchover on a Festival that falls on the Sabbath
A responsum of the Rogatchover is brought from the responsa Tzafnat Pa’neach (Bnei Torah edition, section 2) about someone who cooked on a Festival that fell on the Sabbath, and the discussion whether he transgresses also the prohibition of the Festival and not only the prohibition of the Sabbath. The suggested direction is that when the Sabbath removes the permissibility of cooking on the Festival, then the Festival prohibition also takes effect in a way that does not allow division into “aspects,” because the combination creates a “third entity” in which the laws cannot be broken down into separate parts. In this way the example joins the thesis of the “fusion” of combined laws into one new framework, rather than the attachment of two frameworks side by side.
Full Transcript
[Rabbi Michael Abraham] We’ll use a passage in tractate Kiddushin to sharpen it, and then a passage in tractate Shevuot that requires getting a little more into the details, and there I’ll demonstrate a bit of what it means. So let’s maybe start with a reminder, or an introduction for anyone who doesn’t know, of the common denominator. Look at the bottom of the third page, sources nineteen and twenty. In the first Mishnah in Bava Kamma, in source nineteen, it says as follows: There are four primary categories of damages: the ox, the pit, the maveh, and the fire. There’s a dispute about what exactly maveh and fire are; it’s not important for our purposes right now. But there are four primary damaging agents that appear in the Torah, and the Torah writes that if they cause damage, I have to pay. “The law of the ox is not like the law of the maveh, and the law of the maveh is not like the law of the ox; and the law of neither of these, which have life in them, is like the law of fire, which has no life in it.” Meaning, the whole move of the Mishnah comes to explain why the Torah needs to write these four categories. Why, really, is none of them superfluous? If one of them could have been learned from one of the others, then it would be unnecessary. The question is why the Torah—or the Mishnah, really the Torah—needs to write these four categories. So therefore it has to bring some special property, say, that each category has, which does not allow another category to be learned from it or it from another. Okay? That’s the purpose of the Mishnah, even though it doesn’t spell out the whole process completely; the Talmud fills it in a bit, but I’m not going to get into all those details here because it’s not important for our purposes. I’ll just take the example I want to focus on. Let’s just finish the Mishnah. After explaining why each of them is independent and can’t be learned from the others, the Mishnah concludes: Their common denominator is that they tend to cause damage and their safeguarding is your responsibility, and when they cause damage, the damager is obligated to pay compensation from the best land. Meaning, let’s talk right now about four categories according to one interpretation. So we have, I don’t know, fire, pit, horn, and tooth. Okay? Now what are these categories? In the definitions that appear in the Talmud—the Talmud just spells it out more—fire: someone lights a fire, and the fire goes and burns someone else’s property. Fire has a stringent side, meaning a side because of which it is easier to impose liability for fire damage, and that is that fire is apt to go and cause damage. Someone who lights a fire has to anticipate that the fire will go and damage, and therefore ought to guard it. If he didn’t guard it, that’s significant negligence. On the other hand, there is also a lenient side to fire, because another force is involved in it. Meaning, what carries the fire is the wind. It’s not really just I who am responsible for what the fire does, nor the fire itself; the wind helps it spread. So it has a stringent side and a lenient side. As for a pit, a pit for example does not tend to go and damage. A pit is static. In that sense it is less dangerous than fire. With a pit, in order to be harmed you have to come to it; fire can come to you. So a pit is less dangerous, and therefore it is less negligent if someone didn’t guard it. On the other hand, its very initial formation is for damage. Meaning, it is something that is fundamentally poised to damage. Certainly a pit in the public domain is from the outset meant to cause damage, and so in practice an even heavier responsibility is placed on the owner of the pit. And so with each of the primary categories of damages, there is one feature that makes it easier to impose liability and one feature that makes it harder, or less straightforward, to impose liability. So that distribution of features is what prevents us from learning each one of the primary categories of damage from another category, or from two others, or whatever it may be. Because each one has a lenient side and a stringent side, and you can’t learn it from the others. Now the Mishnah concludes that nevertheless they all do have a common denominator. That’s why it’s called the common denominator, or sometimes “what is the common side?” Common denominator means that there is some feature shared by all of them. And that is that they are all your property and their safeguarding is your responsibility. Yes—“they tend to cause damage”; “your property”—or maybe not that either, it depends on the textual variants here—but “they tend to cause damage,” “your property,” and “their safeguarding is your responsibility.” Right, meaning that all the primary categories of damage are basically things apt to cause damage. That’s common to all of them. Beyond that, there are all kinds of special properties. But since we have four categories of damage in the Torah, meaning all four are liable, then it’s pretty clear that the special properties aren’t so important. What’s important is the common denominator. This is basically a kind of generalization. Right? If we’re doing—two years ago we talked about this, those who were here, I spelled this out a bit more. If, for example, I don’t know, I look at this book, I let go of it, and I see that it falls to the earth. Fine? I say, okay, then probably if I let go of the lectern it too will fall to the earth. Why exactly? What does the book have going for it? It’s made of paper. Fine? That’s a special property. It’s made of paper. Maybe things made of wood don’t fall to the earth? So I take this piece of furniture, hold it up in the air, and it also falls to the earth. There, you see—even something made of wood falls to the earth. Someone says, yes, but what about the lectern, or this table, I don’t know exactly what to call it, which is divided into five parts? The lectern isn’t divided into five. So maybe that’s why it falls to the earth? So I say, no—look, the book isn’t divided into five parts either, and it also falls. Fine? So what do we see here? That the property of being divided into five parts and the property of being made of paper are not important properties, because the fact is that things that don’t have those properties also fall to the earth. It’s the same in scientific generalization. And then what do we say? Apparently what causes the fall to the earth is the common denominator shared by these two cases. And what is that? They both have mass. Right? And everything that has mass falls to the earth. So in practice, learning through a common denominator is this kind of generalization. It’s exactly what we do in other areas of life too. We neutralize irrelevant properties by means of varied examples. I take an example that doesn’t have that property. If the behavior also appears there—the halakhic behavior or the physical behavior—it appears there too, that means that the parameter missing there is apparently not important. Meaning, it does not affect the behavior under discussion. So in our case the behavior under discussion is being liable for payment for one’s property that causes damage. So if I see that ox, fire—fire, sorry—tooth, horn, fire, pit, all of them are liable, then that means, for example, that fire being apt to go and damage—that property, that it tends to go and damage—is not an important property. That’s not why we impose liability on the owner of the fire. Why? Because a pit doesn’t have that property, and nevertheless we impose liability on the owner of the pit for its damages. Fine? Same thing—someone says, okay, but a pit’s very creation is for damage. Fine? But fire, or tooth, or horn, their very creation is not for damage, and nevertheless they are liable. An ox is used for labor, not just for causing damage. Someone who makes a pit in the public domain, that has no use other than causing damage. Meaning, if someone digs a pit in the public domain, that’s considered extremely problematic. It’s very easy to impose liability for that. What are you doing? But fire, or an ox, or things of that sort—those are things I use. A person needs to light a fire, needs to use an ox. He just has to make sure it doesn’t cause damage. But that’s not its initial formation for damage. It’s not something whose whole point is to be harmful. So we see that the special properties each primary damaging category has are not important with respect to liability for payment. Each category teaches, or negates the relevance of, another special property.
[Speaker B] Rabbi, that basically assumes there’s one reason, right? Yes. There’s an assumption—otherwise there could be four different reasons, one for each.
[Rabbi Michael Abraham] Right, right. There is an assumption. I spoke about this at length two years ago, that basically there’s some assumption here. By the way, that’s also the assumption in science, so it’s not unusual. The assumption is that we prefer the simplest theory. You could say that only things divided into five parts or made of paper fall to the earth, and not assume that division into five or paper are irrelevant parameters just because both fall. That too is a possible theory. But it’s a theory that offers one of two possible reasons, and it’s a more complex theory than saying: why not assume there’s something common to both, and that’s what produces the fall to the earth? Like Rabbi Chaim, at the beginning of Chagigah—that famous story, I said those are already Talmud passages, but people always quote it in his name. At the beginning of tractate Chagigah, the signs of an insane person appear: one who goes out to the cemetery at night, one who tears his clothes—three signs of insanity. So the Talmud says: wait, but if he goes out to the cemetery at night, maybe he lost something there earlier that day? So he’s going to look for it. How do you know he’s insane because of that? Yes, but he also tears his clothes. Tears his clothes? Fine, maybe he heard delayed news of a relative’s death, so he tears his clothes now in mourning. He says yes, but there’s also—I don’t even remember what the third sign was there—the third sign, and that’s where it stops. So Rabbi Chaim says, wait a second, but even for the third sign there are possible explanations. Why does the Talmud stop there? So he says: when you have three signs and for each one you’re suggesting a different explanation, that’s already not an explanation. Meaning, with two explanations, maybe by chance there are two different causes that produce the same result, but three different things all producing the same result—that means they have something in common. So the fellow is insane. It’s not that he forgot something in the cemetery during the day and nothing like that. He’s simply insane. We don’t adopt complicated explanations where there is a simple explanation. That is apparently also the basis, by the way, for the force of three times in Jewish law, in various contexts: after three times, we assume there’s a presumption. If an ox gored three times, then the assumption is that it’s a goring ox, an established dangerous ox. Why? Maybe three times it happened to have some episode, I don’t know, somebody upset it. Yes, but with other oxen that never happens, and with this one it happened three times. So to assume that all three times there was some special explanation is a worse theory than the theory that says this fellow is aggressive; that’s probably just its nature. So you have to be very careful: this is an established dangerous ox, and someone who doesn’t guard it properly will pay full damages.
[Speaker C] The rabbi gave that example with the same woman whose two children died because of circumcision, and then they said—
[Rabbi Michael Abraham] Yes, okay, yes. Exactly, that’s actually a nice example for the second connection. Meaning, the question is that in the legal world you have to be careful with inferences of this kind. Because in the legal world, sometimes the simpler explanation isn’t correct. Meaning—well, no, actually there too, you can find a simple explanation that would be correct. Okay, you’re right. Fine. So that’s the Mishnah’s move. But what’s interesting is that it concludes—of course it assumes there is some shared infrastructure underlying all four primary categories of damage. It rejects the special properties of each one as relevant properties—they’re not relevant, because the fact is that damaging agents that don’t have those special properties are also liable for payment. So if that’s so, then apparently what causes it is the mass, right—or in our context, the fact that it is your property, its safeguarding is your responsibility, and it tends to go and cause damage. That is basically the common denominator. Okay. Now the Talmud does this by way of examples. On page 6, source twenty, it brings four examples of why I need this whole move of the Mishnah, that “their common denominator is that they are your property, they tend to cause damage, and their safeguarding is your responsibility.” Why do we need this whole move of setting up the need for each category and then arriving at this conclusion of a common denominator? The Talmud’s assumption is that if the Mishnah does such a thing, then apparently there are certain damaging agents that require this definition in order to impose liability. Meaning, they do not have any of the special features of the primary categories, only that they are my property, their safeguarding is my responsibility, and they tend to cause damage, and therefore one is liable for them. So the Talmud looks for who those damaging agents are. Let me just give you an example to sharpen the point, an interesting example I once thought of, and to this day I don’t have a good answer. Here in tractate Bava Kamma there are four primary categories of damages. A bit more actually, but never mind, the Mishnah lists four. The Talmud here on page 6 brings four examples of new damaging agents that are not among those four, and that can be learned by a synthesis of two of the primary categories of damage. Two together will manage to teach—soon we’ll see how; that’s called the common denominator. Fine? In the laws of the Sabbath there are thirty-nine primary categories of labor. Nowhere in the whole Talmud, in all of rabbinic literature as far as I know—and I looked and I asked—as far as I know there is no derivative labor that is a derivative of two primary categories on the Sabbath. There is no common denominator in the laws of the Sabbath. In the categories of damages there is a common denominator, meaning that we find a derivative category that cannot be learned only from pit or only from fire or only from horn, but there are derivatives for which I need two primary categories in order to prove that one is liable, liable for payment. Soon we’ll see one example. On the Sabbath there isn’t. There is no derivative category that is a derivative of two primary categories. So maybe on the Sabbath too there is some common denominator, but the Mishnah doesn’t conclude with it. The Mishnah in the chapter Klal Gadol in tractate Shabbat lists all the primary categories of labor on the Sabbath, but it doesn’t conclude: their common denominator is that all of them are significant creative acts on the Sabbath, and therefore one is liable. Why doesn’t it conclude that way, even though maybe that really is the common denominator of all of them? That is probably a dispute among medieval authorities (Rishonim), Rashi and Tosafot Rid. But according to some of the medieval authorities (Rishonim), certainly there is such a common denominator, and nevertheless the Mishnah doesn’t conclude with it. Why doesn’t it conclude with it? Because it has no use for it. Meaning, there is no derivative category that needs that generalization; they all come from one or another of the primary categories. Meaning, all the derivatives—
[Speaker D] That each primary category has a different feature from the others? Or completely different?
[Rabbi Michael Abraham] It’s not only a feature, it’s something altogether different. Well, it’s clear that this is some—
[Speaker E] Maybe because there are so many primary categories, that means I specifically want these specific ones and not the—
[Rabbi Michael Abraham] As for the first part, I agree. I don’t think so, because where’s the line? How do we know? I actually think the opposite—maybe this is what I thought—since there are so many primary categories, there aren’t gaps left in between. So if there are four primary categories of damage, each one covers a broad area. So it’s definitely possible that there will be some derivative that doesn’t fit exactly into one category, but sits somewhere in between two of them. Then you need two categories to teach it. But on the Sabbath we divide the spectrum at a very, very fine resolution, because there are thirty-nine primary categories.
[Speaker B] Maybe that’s why some of them were redundant? What? Maybe that’s why some of the thirty-nine were redundant? No, because then you would learn them from the—
[Rabbi Michael Abraham] Yes, but apparently you can’t learn them.
[Speaker B] So it’s not similar enough.
[Rabbi Michael Abraham] Doesn’t matter, but still you see that it’s closer. That’s what comes out. Once it’s closer, the odds certainly go down. The chance of such a derivative category that would need two source categories and wouldn’t belong clearly to one sector—fine? Because the resolution is high. Good. So maybe that’s an explanation, I don’t know. In any case, I’m just bringing this as an example of why on the Sabbath we really don’t find in the Mishnah, after it lists the thirty-nine primary categories, a statement of their common denominator, such-and-such, some sweeping generalization. Which, as I said earlier, leads to a dispute among medieval authorities (Rishonim): whether there really is a common denominator. A dispute between Rashi and Tosafot on the question whether there is some principle that connects all these labors—say, creativity on the Sabbath, creating something new on the Sabbath, something like that, which people quite commonly assume—but not all the medieval authorities (Rishonim) agree with that. So if the Mishnah had made that move, then we maybe would have had to argue; it would have been clear. Fine? But the Mishnah doesn’t do that. It doesn’t do that because it knows of no example of a derivative category that needs this generalization, so it doesn’t do it. In Bava Kamma the Mishnah does do it. After it says there are four primary categories of damage, like primary categories of labor, it concludes with “their common denominator.” That bothers the Talmud. The Talmud reads these two Mishnayot and says: wait, why here did they conclude with a common denominator and there they didn’t? And then the Talmud says, “Their common denominator”—the Talmud says in source twenty—“what does this come to include?” What is it teaching us? Meaning, the Talmud assumes that there is some derivative category that needs the common denominator in order to impose liability for it. It can’t be learned from any one of the four primary categories. In damages there are four categories, not three. Abaye said: It comes to include one’s stone, knife, and burden that he placed on top of his roof, and they fell in a normal wind and caused damage. Right, we’re talking about a person who put objects on the roof—stone, or knife, or something like that, or some burden. A normal wind came and knocked them down, and they caused damage. That can’t be learned from any one of the primary categories of damages alone. You need some generalization here that includes at least two of the primary categories of damages. That’s the first example; there are another three examples there in the Talmud. And then the Talmud starts discussing why. Meaning, why isn’t one category enough, and how is it learned anyway? So the Talmud says: what are the circumstances? If they caused damage while in motion—meaning, if we say that while they were flying they caused damage, so that during the fall someone happened to be standing there and was harmed—the Talmud says: that is just fire. In what way is fire special? Another force is involved in it, and it is your property and its safeguarding is your responsibility—here it says “your property.” In the Mishnah it doesn’t say “your property”; I said there are textual variants on this. These too involve another force and are your property, and their safeguarding is your responsibility. Basically, if it causes damage while flying, then it’s really just like fire. There’s no substantive difference between them. Fine? Whatever makes fire liable makes this liable too. The wind took something, and while it was in flight it caused damage, so that’s basically like fire. So what? What’s the problem with it being like fire? The problem is that then this isn’t a good explanation of why the Mishnah needed the common denominator, because then fire alone would have sufficed to teach it. I don’t need a synthesis of two categories in order to learn it. It’s entirely like fire, no problem. You don’t need help from any other category to teach this derivative category. Therefore the Talmud says: rather, after they came to rest. We’re talking about a case where they didn’t cause damage while flying down, but they flew down, came to rest below, and then someone apparently stumbled over them and they caused damage. After they had already come to rest below. Now there starts a discussion with Rav and Shmuel; I won’t get into it. Look now one line before the end: “Actually, he declared them ownerless.” So we’re talking about a case where he declared them ownerless—not important—and they are not similar to a pit. Now we want to learn it from a pit. That’s the first impulse. Again, this is after they came to rest. Meaning, I put my objects on the roof, a normal wind blows them down, they come to rest below in the public domain, and now someone passes by, is injured by them. That’s the case. The Talmud says, at first glance this is like a pit. I dug a pit in the public domain, someone stumbles into it and is harmed. So too, a knife or a stone lying in the public domain, or a banana peel, and someone stumbles over it and is harmed—that’s a pit. Right? So it resembles a pit. Again, no problem. Again, there is a problem, because then I don’t need a common denominator. If it is entirely like a pit—one of the primary categories—then once again the question is why the Mishnah made this move of the common denominator. So the Talmud says: and they are not like a pit. How is a pit different? A pit has no other force involved in it. Can you say that about these, where another force is involved in them? Meaning, a pit just sits there. I dug it and it stayed there. No other force was involved in it. With these objects, it’s not exclusively my fault, I’m not the only one responsible for the fact that they’re lying there and caused damage, because I didn’t place them in the public domain; I put them on the roof. The wind took them down. What I said earlier about fire, right? So in fact the wind is also a partner here in the damage, not only I. There’s even some song like that, “the wind—it wasn’t me, it was the wind.” So I’m not solely to blame; the wind also played some part in the matter. Therefore you can’t learn it from a pit. Meaning, if the Torah had written only pit, we wouldn’t have known this damaging agent. Why? Because if someone tried to learn this damaging agent from pit, they’d say: wait, wait—a pit is static. You are at fault, you dug it, you are solely responsible. But here the wind also played a part; maybe I couldn’t have foreseen that a wind would come? You said it was a normal wind, fine, but the wind also played some role here. Therefore the Talmud says: fire proves otherwise. Now we return to the structure I mentioned before. Fine—but in the Mishnah, in the Talmud, in the Torah, there appears not only pit but also fire. And what is the property of fire? That another force is involved in it. Fire too is carried by the wind, and nevertheless one is liable. So what do I see? That the fact that the wind is involved in producing the damage does not exempt one. So fire teaches me too. But then of course the question always arises: fine, then let’s learn it just from fire—why do I need pit at all? I need two in order to explain the Mishnah. So maybe it’s just like fire? So the Talmud says: how is fire different? Because it tends to go and cause damage. Fire tends to go and damage. These things generally do not go and cause damage. A stone is not something that naturally tends to go and cause damage. And then they say: pit proves otherwise, and the law returns. Meaning, this is the first example the Talmud brings of a case where you need both pit and fire in order to impose liability. Meaning, if I learned it only from pit or only from fire, I couldn’t impose liability. I need both things. Why? Because there are certain special properties in pit and in fire such that if either of them had been written by itself, I would not have been able to derive this case. Look for a moment at the next page; there are these diagrams. In the upper right diagram, yes, the upper table on the right side—that is learning by the common denominator, and every common denominator in the Talmud is structured this way. Like the example we just saw, but it appears often throughout the Talmud. So look: there are two source cases that somehow join together and teach about a third thing. Remember this table and this book? Both fall to the earth. I want to learn from that that this pen too, if I let go of it, will fall to the earth. Right? So the table and the book are the two source cases, and the pen is the learned case. Right? That is the thing I learn from the two source cases. Now how is such an analogy built? In the two source cases, notice, they have a shared property, Z, common to both, and it is also present in the learned case. What is the shared property in the case of the pen and the book? Falling—mass. Right? They all have mass. The pen, the table, and the book all have mass. Okay. But on the other hand, the book has the special property that it is made of paper. On one side. On the other hand, it is not divided into five parts. So notice: it has property Y and it lacks property X. The line underneath means it lacks property X. Fine? And the opposite with the table: the table is divided into five parts, so it has X, and it is not made of paper, so it does not have Y. Fine? Now what do I do in such an inference of the common denominator? I basically say this—now I’ll phrase it in the language of X’s and Y’s, and then you’ll see the general structure, because it’s exactly what we also saw in the Talmud in Bava Kamma. I start by trying to learn from the upper one—let’s call them A and B, and let’s call the learned case C, even though I didn’t mark it here. So I start trying to learn C from A alone. Fine? Without a common denominator. I say: impossible, because maybe the reason that in C one would be liable to pay, or it would fall to the earth, depending on the context of the derivation, is the special property Y. But C doesn’t have the special property Y, so maybe it won’t happen there. Fine, so let’s look at source case B, the lower one. There, the property Y is absent, and nevertheless it falls to the earth, or is liable for payment, or whatever it is. So we see that property Y is irrelevant. Someone says: wait, but B does have property X, which the learned case also lacks. You can see that, right? The learned case doesn’t have X. So maybe property X is what caused it to fall, or to be liable for payment, or something like that. Let’s go back to the first source case. In the first source case, after all, X is absent, and nevertheless it happens. So we see that Y is not relevant—that we learn from the lower case—and from the upper case we learn that X is not relevant. So what remains? Apparently what remains is that their common denominator is what determines the law or the physical phenomenon, in the case of physics—namely property Z. And property Z does appear in the learned case. Unlike X and Y, which do not characterize the learned case—you can see the lines underneath—Z does characterize the learned case. So if Z is the property relevant to falling to the earth or to liability for payment, then the learned case too is liable for payment, or it too will fall to the earth. Fine? That is the structure of the common denominator. You can—I’ve marked it, you can compare it to the diagram on the left—I mark this as a multiplication, what we do between the two source cases. Multiplication meaning an intersection, yes—taking what is common to the two source cases. In contrast, on the left side, if you look and follow the letters, I’m presenting this only schematically right now to sharpen the difference: there are two source cases, each of which has opposite properties, but there is no common denominator. There is no Z. The upper one has Y and lacks X; the lower one lacks Y and has X. There is no common side. Therefore here you cannot make an inference of the common denominator type. But nevertheless, in a few places—and that’s what I’ll try to show today—we do find an inference that takes two source cases of this kind and derives from them a learned case that has neither X nor Y, or has both X and Y—it depends what we’re marking as absent or present, the property that causes or the property that does not cause. Fine?
[Speaker B] There’s always, always a common denominator. What? There’s always a common denominator.
[Rabbi Michael Abraham] Sometimes it’s entirely formal.
[Speaker B] You’re right that theoretically you could find here in damages other common denominators besides, I don’t know, what the Mishnah brought. There are infinitely many common sides.
[Rabbi Michael Abraham] Of course. We’re looking for relevant common sides; we talked about that two years ago. Of course there’s something here—it’s not completely formal mathematics. We also come in with logic and say the question is what’s relevant, whether it’s relevant or not.
[Speaker B] You can’t say in advance, and now—
[Rabbi Michael Abraham] No, I’m not sure I know the answer in advance, but I can still, just like in science—how do you infer? There are lots of things the tree and the paper have in common. This paper isn’t devoid of wood, so wood is involved in it too. So maybe only things with wood fall to the earth? Our assumption is that this is probably not a property relevant to falling to the earth, while mass somehow does seem relevant to us, even though we’re still before Newton—that is, we still don’t know the theory; we’re building it right now, okay? We have some initial intuition that knows how to sort which properties are relevant and which are not. That’s a fact. In science too, and in Jewish law too, that’s how it works.
Now, conceptual construction—what it actually does is take two source cases that in practice have nothing in common, but I can connect them together and create from them a third mechanism that will be the same. It has a certain component from the upper one, a certain component from the lower one; I join them together and create something third here, and that too is liable—or it depends on the context I’m talking about.
Let’s take a simple example of the matter. Look again at the third page, source sixteen. First, some background: in the Jerusalem Talmud it appears that someone who spits on the Sabbath is liable. Meaning, if someone spits on the Sabbath, he is liable. There are variants there—“spits,” “throws,” “ejects,” all kinds of versions—but “spits” is one of the versions: liable. And the medieval authorities (Rishonim) and later authorities (Acharonim) discuss this there; they don’t really understand why—why is it forbidden to spit on the Sabbath? What’s the issue here? And who actually brings this Jerusalem Talmud into Jewish law?
There are major disputes about this. In the Bi’ur Halakhah, yes, of the Mishnah Berurah, he brings in the name of the book Alfei Menasheh—that’s Rabbi Menashe of Ilya, a student of the Vilna Gaon, a very interesting Jew—and in Alfei Menasheh he explained that the intent of the Jerusalem Talmud is where one transfers four cubits in the public domain by means of the wind. And this is by way of analogy: just as in throwing, even though the wind assists him, nevertheless he is liable, so too in spitting, where the transfer is by means of the wind, he is also liable. And he says this is correct.
What does he mean to say? This is the only example I found of something resembling a common denominator in the laws of the Sabbath. So let’s give a bit of background. There are thirty-nine primary categories of labor on the Sabbath. One of them is winnowing. Winnowing means I take kernels mixed with chaff—wheat kernels mixed with chaff—I throw them into the air, the wind blows away the chaff because it’s light, the kernels fall down, and that’s how I separated the kernels from the chaff, okay? That separation is of course done with the kind assistance of the wind, right? So one might have said this is not a labor for which I can be held liable. Remember the Talmud in… the Talmud in Bava Kamma says the same thing. I didn’t do it; the wind did it, right? So why are we liable for this? But it says he is liable. Winnowing is one of the primary categories of labor. So you’re liable.
There is another primary labor, or derivative labor—let’s say derivative labor, in the simple understanding—namely throwing. What is throwing? In the labor of carrying out, there is carrying from a private domain to a public domain, and there is transferring four cubits in the public domain. Meaning, if I take an object and walk with it four cubits in the public domain, I’m liable. Okay? That is called carrying out. Some of the medieval authorities (Rishonim)—it’s a dispute between Ba’al HaMaor and Nachmanides—some explain that my four cubits are my domain. Once I walk four cubits in the public domain, I have essentially gone out from my domain to another domain. It’s like carrying from a private domain to a public domain. Okay? In any case, that too incurs liability. That’s clear.
Now the Talmud says there is also an extension of transferring four cubits in the public domain—which itself is an extension of carrying from a private domain to a public domain—and that is if I throw. I don’t take the object and walk with it four cubits in the public domain; rather I take an object and throw it four cubits, but of course it has to be thrown a distance of four cubits. There too I’m liable. So that’s explicit in the Talmud. Okay?
Now the Jerusalem Talmud says—according to Rabbi Menashe of Ilya’s explanation—what happens if I take an object and throw it into the air? If there were no wind, it would fall here; it would not go four cubits, so I would not be liable. Okay? But I threw it into the air, the wind came and carried it four cubits forward—am I liable or not? So Rabbi Menashe of Ilya says I am liable. Why? Because I learn it from winnowing and throwing together. Right? In essence this is the labor of winnowing: I transfer four cubits in the public domain by means of throwing, but I didn’t really throw it—it’s not only by my power. I threw it upward; I didn’t throw it the four cubits. What did that was the wind. Okay? That I learn from winnowing, even though the labor of winnowing in essence has nothing at all to do with what happened here. But that principle—that if the wind is involved, it does not prevent liability—that I learn from winnowing. Okay? The combination of winnowing and throwing together gives me the labor of spitting, and then the claim is that one is actually liable on a Torah level. There are medieval authorities (Rishonim) who want to say that one is not actually liable, it is only forbidden; here it says Torah-level liability, actually liable.
Now at first glance one might have said that there is here an inference of common denominator; I can even formulate it formally as a kind of common denominator. Let’s learn it from winnowing: what is unique to winnowing? That it separates food from waste—and spitting doesn’t separate anything. Let throwing prove otherwise, since throwing does not separate food from waste. You say yes, but in throwing no other force is involved. Let winnowing prove otherwise, since there the wind is involved. And so the law returns, and one can learn from both of them regarding spitting.
But that is only formal. Why? Because no one would ever have thought to learn this from winnowing. Learn it from winnowing? What is similar between this and winnowing? Only the distinguishing property is similar? There’s no such thing. Just look at the diagram: you see the diagram of common denominator? Between the learned case and the upper source case there is something similar, also in X. Neither of them has X, right? And there is also something similar in that both of them have Z. In our case, the similarity is of the X type—that is, that there is no X: here the wind interferes with liability, and there too the wind interferes with liability. But I’m asking: what is the Z? Meaning, what is the reason that one is liable, not the reason that one is not liable? There is nothing similar at all between winnowing and spitting, right? Therefore this similarity is not valid; this is not a common denominator. There is nothing here.
What is shared between throwing and winnowing? Can I see them in the right-hand diagram? I should have been able to map them onto X, Y, and Z. They both have Z; one has Y and the other doesn’t; one has X and the other doesn’t.
[Speaker B] That’s the construction the Rabbi explained. Yes, right.
[Rabbi Michael Abraham] So if I go in the direction of construction, maybe—but simply speaking, that’s not it. It’s not “construction” in that sense; it’s something much more concrete. So there really is no shared component here. Rather what is there? I take a certain principle that I learn from winnowing, I take a certain principle that I learn from throwing, I connect them together and create a new labor, and for that labor one is liable. So this is not common denominator. It actually resembles the left-hand side. Look at the upper table on the left side. That is really the situation here, right?
Throwing is transferring four… let’s say the upper one is throwing and the lower one is winnowing. Throwing is transferring four cubits in the public domain. Okay, so in the learned case, look at it as if it were X and Y—not X and not Y, okay? So the upper one is transferring four cubits in the public domain, and that also exists in the learned case; spitting too transfers four cubits in the public domain. But on the other hand, in throwing there is no X, meaning no external force is involved in it; I do it by my own power. Here, by contrast, there is X, right? Again, the X here is without… without the line underneath. Okay? Here there is X. He says: that I will prove from the second one. Right? We see that there is the X from the lower one, the Y from the upper one, I join them together, and I say: a labor composed of X plus Y is also a labor for which one is liable on the Sabbath.
[Speaker B] You could construct all the labors in the world this way. Huh? In principle, you could construct all of Jewish law this way.
[Rabbi Michael Abraham] Could be. If you manage to define it in a
[Speaker B] sufficient
[Rabbi Michael Abraham] convincing way, then fine.
[Speaker B] It’s just the…
[Rabbi Michael Abraham] Give it a try. I don’t think it’s all that trivial.
[Speaker B] I’m not saying it’s trivial, but these are the eigenvalues of all… I mean, it’s like modes in physics. I can construct everything out of them.
[Rabbi Michael Abraham] I didn’t understand what that has to do with it.
[Speaker B] Because this is basically—why did the Talmud bring specifically these two? Because they’re the most basic…
[Rabbi Michael Abraham] Maybe. We talked about that two years ago. I’m not sure about it, but maybe. Suppose so.
[Speaker B] And with them, because they are the narrowest common denominator, you can construct all the possibilities.
[Rabbi Michael Abraham] Yes, but who says… but that is exactly the point: we don’t find common denominator in the Sabbath labors.
[Speaker B] So who says those are the modes?
[Rabbi Michael Abraham] That’s exactly the point. Who says every combination of them will really spread out over everything you do in the world? No. Only if you show me this concretely in all kinds of new labors, then we can discuss it. But I don’t think it’s so simple to do.
[Speaker B] It’s not simple, but my feeling is that I can construct it.
[Rabbi Michael Abraham] Fine, take the challenge. Take a list of things people do that are not forbidden on the Sabbath, and try to build them in the same way from other Sabbath labors. If you succeed, maybe there is an argument here that could really come and forbid them, and people will be happy. We’ll be able to forbid more things on the Sabbath.
[Speaker B] Right, and you can always reject it and say that this isn’t such an important property.
[Rabbi Michael Abraham] Being able to reject it is not the clever part. The question is whether you really see a meaningful rejection here. Here I think this is genuinely a convincing construction. Because you really see in winnowing that the wind does not prevent liability. And throwing and spitting are really the same thing: I move it into the air and it flies four cubits; the whole problem is only that the wind is involved. That I see from winnowing, that the fact that the wind is involved does not prevent liability.
By the way, this probably depends on the dispute between Rashi and the Rosh in Bava Kamma on page 60. There are several explanations there for why winnowing on the Sabbath incurs liability, whereas if one does this in the context of damage—yes, only when he throws it and then the wind takes it and it causes damage—there he is exempt; that is considered indirect causation. The Talmud asks: why on the Sabbath are you liable, while in damages you are exempt? The fourth answer there—Rav Ashi says that the Torah forbade intentional craftsmanship. So Rashi there explains: what does it mean that the Torah forbade intentional craftsmanship? Rashi says that if in the end his intention was fulfilled, I don’t care that it was done through the wind. Meaning, there is a general principle in the labors of the Sabbath, and according to that Rashi this is a result that follows immediately from what is written here. It is not a novelty at all.
Rashi is basically saying that there is a general principle here: anything done with the help of the wind, if I planned it in advance—that is, if I use the wind in a deliberate plan—there is no problem; I will still be liable. Or rather, there is a problem, yes—I will still be liable. Okay? The Rosh there, by contrast, disagrees with him. The Rosh argues that this is unique to winnowing. In winnowing it was specifically innovated; that is the foundation of the labor of winnowing, that specifically there, since that is its normal manner of being done—and usually one doesn’t do it this way, and other labors generally are not done with the help of the wind—therefore in other labors done with the help of the wind you would not be liable.
But according to Rashi, this is an almost necessary conclusion. What would he say about spitting? He would explain it differently, as the Minchat Shlomo explains it that way. Spitting is just—I gave it as an anecdote; it’s not the standard explanation. Most explanations don’t need this at all. But the Minchat Shlomo goes in this direction. It fits the principled direction of Rashi. Okay?
So here there is a combination—I think an overall quite compelling combination—of winnowing and throwing. That is what winnowing and throwing are. Now here this is an example of the kind of inference, or hermeneutic rule, that I said I want to present here, which is called conceptual construction. It is not common denominator. There is nothing shared by the two source cases. What is similar between winnowing and throwing? Nothing at all. Rather, what is there? I take one principle from winnowing, one principle from throwing, combine them, and create from it… in fact I am taking the different aspects of winnowing and of throwing, right? That is why I call it plus. The right-hand side is multiplication. Why multiplication? Because I am taking the intersection: what is shared by the two source cases? That shared element is the common denominator.
In the left-hand form of learning, I take precisely what differs between the two source cases, not what is equal. There is no equal part. I take one principle from here, one principle from there—each one is absent from the other—I join them together and create something third.
[Speaker D] Here it’s multiplication and here it’s addition.
[Rabbi Michael Abraham] Exactly. That’s why I put a plus here and a product there. Okay? So that is one example. Another example, which we can also go through briefly, is in source 17. This is the Or Sameach on the laws of the Yom Kippur Temple service.
Maimonides, at the beginning of the laws of the Yom Kippur service, writes as follows. There is a rule that all of the Yom Kippur Temple service must be performed by the High Priest, unlike the service of ordinary days, which is valid also if performed by an ordinary priest. Now, what happens if Yom Kippur falls on the Sabbath? Then one has to bring there not only the sacrifices of Yom Kippur but also the additional offerings of the Sabbath. And the additional offerings of the Sabbath, ostensibly, could also be performed by an ordinary priest, because they are not part of the Yom Kippur service; had it not fallen on the Sabbath, they would not have been brought at all. This is the Sabbath service there; it is not the Yom Kippur service.
Maimonides says no—even the Sabbath additional offerings are performed by the High Priest. So the Or Sameach, in chapter 4—there it’s at the beginning of chapter 1; in chapter 4 he says: “Our master’s view, above in chapter 1, is that even the Sabbath additional offering is by the High Priest, although it comes only because of circumstance”—it just happened to fall on the Sabbath; it is not really part of Yom Kippur—“and it is not among the sacrifices of the day. It seems that our master inferred this from the language of the Talmud, ‘the additional offerings together with the morning daily offering,’ etc., meaning all additional offerings, even those of the Sabbath.” The Talmud there says “additional offerings”; simply speaking that means the additional offerings of Yom Kippur, but apparently “additional offerings” means all the additional offerings. That’s how Maimonides understood it. “And perhaps our master had this explicitly somewhere.” In other words, he doesn’t know. He doesn’t know the source from which Maimonides derived this law.
But it does seem likely, because he finds a proof for it elsewhere. For they said in the chapter Kol HaTadir in tractate Zevachim: “Does the New Moon help only for its own additional offerings and not for the additional offerings of the Sabbath?” Meaning, there the discussion is about what is more frequent and what is more sanctified, right? There is a dilemma which sacrifices to offer first. One sacrifice is more frequent and another is more sanctified. Now if you have a frequent item and a non-frequent item, the frequent one comes first. If you have a sanctified item and a non-sanctified item, the sanctified one comes first. What happens if one is more sanctified and the other is more frequent? The example the Talmud gives—and by the way it’s a very interesting example—is the additional offerings of the New Moon and the additional offerings of the Sabbath.
The frequent one is the Sabbath, right? That’s every week. So it turns out the more sanctified one is the additional offerings of the New Moon. The New Moon additional offerings are more sanctified than the Sabbath additional offerings—that’s what the Talmud says there. Rashi explains: because it is called an appointed time, as in “He called an appointed time against me”—where is it called an appointed time? In Lamentations: “He called an appointed time against me to break my young men.” And the Talmud explains that this refers to the New Moon. So because of that, there is a dilemma here as to which should come first. The Talmud brings that the Sabbath additional offerings are offered first, and from here you see that the frequent comes before the sanctified.
But the Talmud says: what are you talking about? The Sabbath additional offerings—this is the language here—“Does the New Moon help only for its own additional offerings and not for the additional offerings of the Sabbath?” The Sabbath additional offerings too are sacrifices of the New Moon. So they are both of the New Moon and of the Sabbath. Therefore they are both frequent and sanctified, and so you cannot bring from here proof that the frequent precedes the sanctified. Meaning, we see here that the Sabbath additional offerings that are offered on the New Moon are considered sacrifices of the New Moon and not merely sacrifices of the Sabbath.
The interesting question is why the reverse did not happen: the New Moon additional offerings that are offered—they are offered on the Sabbath—so they too should have both sanctity and frequency, so why are they separate? That’s another question. But the Talmud tells us almost explicitly what Maimonides says here, and that is a wonderful proof that the Or Sameach brings. And then he says: “So we see that they are sanctified with the sanctity of the New Moon.” We see that they are sanctified also with the sanctity of the New Moon, even though these are sacrifices that come because of the Sabbath, not sacrifices of the New Moon.
“So too here, the Sabbath additional offerings are sanctified with the sanctity of Yom Kippur, and their commandment is to be performed by the High Priest like the daily offerings.” Why does he say “like the daily offerings”? Because the daily offering too is offered every day. The daily offering of Yom Kippur—the daily offering is in the morning and in the afternoon, right? They open and close the Temple service day. Now on Yom Kippur too there are daily offerings; every day has daily offerings. Okay? Who offers the daily offering of Yom Kippur? That is clear; it is explicit in the Talmud—it is the High Priest. Since the daily offering of Yom Kippur is certainly a sacrifice of Yom Kippur.
[Speaker B] Isn’t that enough to teach it, though?
[Rabbi Michael Abraham] It isn’t enough? Apparently it isn’t enough, and that’s an interesting question too, why not. Apparently it isn’t enough, because if it’s every day, then that means it gets colored each day with the color of that day, and it’s not some fixed sacrifice that just happened to fall on Yom Kippur. That is apparently the understanding here. But that is what he writes.
Now he derives from this a very interesting conclusion. He says: “And so it appears to me that the sanctity of Yom Kippur takes effect upon the Sabbath as well.” So if we learn from the words of Maimonides—now he moves to practical Jewish law. There it was about sacrifices; now he says practically, the sanctity of Yom Kippur takes effect upon the Sabbath as well, “to sanctify it through refraining from all eating.” At the beginning regarding Yom Kippur it says that one must rest on it from eating and drinking. Not only rest from labor, but rest from eating and drinking. Meaning, the essence of Yom Kippur, at least according to Maimonides—and one can bring proof for this also from the Talmud—is that it is a broader form of cessation. It is not that there is merely a prohibition or obligation of ceasing from labor, as on all Sabbaths, and in addition a prohibition of eating. No: it is an obligation of cessation, just a greater cessation—not only from labor but also from eating and drinking. Okay?
So he says: one must sanctify it by refraining from all eating, and the sanctity of Yom Kippur also applies to the Sabbath in that one sanctifies it through affliction of the soul. “Therefore, when Yom Kippur falls on the Sabbath and there is a dangerously ill person who must eat, I rule that he does not recite kiddush for the Sabbath, because the sanctity of the Sabbath does not require that he eat on it. And this is obvious.” Yes, this huge novelty even seems obvious to him. In fact this is a dispute among the later authorities (Acharonim): what is the law here?
What happens with someone who is ill, yes, and on Yom Kippur he has to eat? There is a famous story about the Avnei Nezer. When the Avnei Nezer was a boy, his father sent him to eat in the morning during prayer, after Shacharit. He came back, and his father said to him: tell me, did you make kiddush? Yom Kippur. Tell me, did you make kiddush? He said: no, of course not. His father said: what do you mean? It’s a festival today; it’s an appointed time. We don’t eat, so we don’t make kiddush—but you, if you’re eating, you have to make kiddush. He said to his father: no way, I’m not obligated to make kiddush. Why am I not obligated? Because the whole obligation of a minor to make kiddush—why? So that he will know what to do when he becomes an adult, by the law of education. But when he becomes an adult he won’t eat. So obviously there is no educational obligation for a minor to make kiddush. Yes, the Avnei Nezer was a sharp fellow.
In any case, the Or Sameach is speaking about a situation—and this is apparently pretty clear. By the way, it is apparently fairly clear and agreed upon that someone ill who eats on Yom Kippur does not make kiddush, although I once saw some discussion about that too. But Yom Kippur that falls on the Sabbath—that’s where there is a dispute. If Yom Kippur falls on the Sabbath and a certain ill person has to eat, then from the standpoint of Yom Kippur there is no kiddush, because all in all this is not a day designated for eating. But from the standpoint of the Sabbath, you should have had to make kiddush.
So the Or Sameach says here: no. An ill person who eats on Yom Kippur that falls on the Sabbath does not need to make kiddush. Why? In the language I used earlier, what he is really saying is that this day is not Yom Kippur and Sabbath. Rather, what you have here is a combination of the laws of Yom Kippur and the laws of the Sabbath: it is a day of a third type, with a certain component of Yom Kippur and a certain component of the Sabbath. I take the two together, combine them, and create a third kind of day: Yom Kippur that falls on the Sabbath.
On such a day there is inherently no kiddush, since everyone must fast. So on such a day there is no kiddush. This is not a day that has a Sabbath aspect and a Yom Kippur aspect. That has already been erased. It is neither Sabbath nor Yom Kippur; it is a day of a third type, constructed from one certain dimension that is Sabbath and another dimension that is Yom Kippur. And in essence such a day is not designated for eating; since it is not designated for eating, there is no kiddush on it.
There is an interesting responsum of the Rogatchover in the responsa Tzafnat Pa’neach. I saw in Otzar HaChochma that there is a Tzafnat Pa’neach responsa published by the Tzafnat Pa’neach Institute—that’s a different edition. It doesn’t appear there. But in the Bnei Torah edition, there is the responsa of Tzafnat Pa’neach in section 2; there he discusses the following. On a Jewish holiday it is permitted to cook, right? On the Sabbath it is forbidden. What happens on a Jewish holiday that falls on the Sabbath? Forbidden, right? Now the Rogatchover discusses what happens if someone cooked on a Jewish holiday that fell on the Sabbath. Does he violate also the prohibition of the holiday, not only the prohibition of the Sabbath? The prohibition of the Sabbath he certainly violates, because from the standpoint of the Sabbath cooking is forbidden.
He says: it could be that once there is no permission to cook, then you also violate the holiday prohibition. Meaning, why? This is not some pasted-together combination of holiday and Sabbath. The Sabbath has already colored the holiday too. Meaning, you cannot violate only the Sabbath without violating… either you violate or you don’t violate. You can’t split it into aspects. There is no—this is not two laws in the style of Rabbi Chaim, where there is this aspect and that aspect. No, the two aspects have fused and melted into some third entity. We have now created a third entity. Now we have to decide: if it is forbidden, then it is forbidden from all angles; if it is permitted, then it is permitted—but if not, then not. It’s not…