Lecture dated 5 Tammuz 5767

Table of Contents

• A person cannot prohibit something that is not his, and Tosafot
• The sin-offering cow, the red heifer, consent, and “worked for its own sake like one works”
• Idolatry, piggul, and the relationship between action and thought
• Maimonides: the sin-offering cow versus libation wine and slaughter
• An apostate, a gentile, and ordinary gentile wine versus libation wine
• The later authorities: Lechem Mishneh, Oneg Yom Tov, and the dispute over “action” versus “thought”
• Kilayim as an exception, and Rabbi Yosi’s view in Maimonides
• Halakhic territory: the limits of Jewish law’s operation on another person
• Something not in his possession: an analogy to consecration and an expansion of the question

Summary

General overview

The text raises a difficulty for the view that someone else can invalidate or prohibit another person’s object, as against the rule that a person cannot prohibit something that is not his, especially according to Tosafot, who say that where thought is required, a person has no power to prohibit what belongs to someone else. It proposes resolving the case of the sin-offering cow by saying that in the red heifer the thought is not necessarily “the prohibiting factor” but only a condition, or that there thought receives the status of an action, similar to sacrificial matters, and then the disqualification takes effect because of the factual circumstance that a yoke was placed on it, and the prohibition is attributed to the Torah and not to the person. Later it compares this with the language of Maimonides regarding libation wine and slaughter, where he emphasizes that no Jew can prohibit something that is not his and adds the reason that “his intent is only to cause him distress,” and it brings Oneg Yom Tov and Lechem Mishneh, who explain Maimonides’ view differently. The discussion concludes by proposing a framework of “halakhic territory,” according to which even when all the factual circumstances are present, a person still has no power to impose halakhic consequences on someone else, and the difference between various areas depends on who imposes the prohibition and in what way.

A person cannot prohibit something that is not his, and Tosafot

The text asks: according to the opinion that someone else can prohibit, the rule still stands that a person cannot prohibit something that is not his; and according to Tosafot the difficulty is even greater, because in matters that require thought, a person cannot prohibit what belongs to another. It suggests that the basis of Tosafot’s distinction is the question of who is doing the prohibiting: where an action is enough, the person merely creates a reality and the Torah prohibits on that basis; but where thought is required, the thought itself functions as the prohibiting factor, and therefore a person cannot prohibit what belongs to someone else. It adds another possible distinction within the laws of thought: between a case where the thought is the disqualifying element and a case where the thought is only a condition. In a case where thought is only a condition, one can say that the prohibition takes effect from the Torah because of the facts on the ground.

The sin-offering cow, the red heifer, consent, and “worked for its own sake like one works”

The text assumes that in the red heifer the basic disqualification is “upon which no yoke has come up,” and that the owner’s consent is derived from “worked for its own sake like one works” as a condition. It suggests that since the yoke is a fact, if the consent is not the disqualifying factor itself but only a condition for the disqualification, then even another person can cause the disqualification, because the facts are present and it is the Torah that imposes the disqualification. It also brings in an idea mentioned earlier, that thought in the red heifer is similar to thought in sacrificial matters and has the status of an action, similar to the principle that “his verbal declaration to Heaven is like handing it over to an ordinary person,” and to the laws of piggul; therefore it may be that the requirement of thought there is not like “thought” elsewhere in the Torah but is part of the disqualifying act itself.

Idolatry, piggul, and the relationship between action and thought

The text illustrates that in idolatry both action and thought are required, but says we have to investigate what is primary and what is merely a condition, and it presents the straightforward intuition that the thought is what disqualifies, while the action is a condition that reveals it. It mentions a complex passage in tractate Avodah Zarah about one who serves out of love or fear, to show that the question of what actually disqualifies is not simple. It uses this model to sharpen the point that when thought is the primary disqualifying factor, a person has no power to impose a prohibition on another person’s object; but when the action is primary and the thought is only a condition, the prohibition can be attributed to the Torah.

Maimonides: the sin-offering cow versus libation wine and slaughter

The text says that on the plain reading of Maimonides in the laws of one who injures or damages, he does not limit the case of the sin-offering cow specifically to partners, and from this it seems that any person can invalidate another person’s sin-offering cow and is liable to pay. It quotes Maimonides that if someone pours another person’s wine as a libation for idolatry, the wine does not become prohibited, because “no Jew can prohibit something that is not his”; only in a case of partnership, or where he is an apostate who is like a gentile, or where he received prior warning and is treated like an apostate, does he prohibit it and become liable to pay. It also brings Maimonides in the laws of slaughter, with the case of two people holding a knife, where without partnership the animal is not prohibited, and he adds the reason that “his intent is only to cause him distress.” From there the text raises the question whether this is a fundamental lack of power to prohibit, or a presumption that his intent is not really to prohibit but only to provoke.

An apostate, a gentile, and ordinary gentile wine versus libation wine

The text clarifies that the emphasis in Maimonides’ language is “no Jew,” and raises the question whether a gentile can prohibit, noting that at first glance the law of libation wine seems to be proof that someone else can prohibit my wine. It rejects this proof by saying that the prohibition of libation wine is that the Torah or the Sages prohibited wine touched by a gentile or poured as a libation, so this is an expression of the Torah imposing a prohibition on a certain reality, not of the person “prohibiting” by his own power. It suggests that the rule that an apostate, “since he is like a gentile,” does prohibit, is connected to the need to distance oneself from him, and it distinguishes between a prohibition rooted in idolatry and dependent on thought, and a prohibition that comes from a rabbinic enactment of distancing.

The later authorities: Lechem Mishneh, Oneg Yom Tov, and the dispute over “action” versus “thought”

The text brings Lechem Mishneh, who explains that a gentile does prohibit, and that the baraita was interpreted as speaking of two people holding the knife where one is a Jewish apostate. It quotes Oneg Yom Tov (section 59), who explains Maimonides as meaning that a person can prohibit something that is not his by means of an action, and only in the case of a Jew do we say “he intends only to cause distress,” and it connects this to the Talmudic passage about the possibility of prohibiting another person’s object by an action. It notes that Oneg Yom Tov ultimately proves otherwise as well: that even through action, a person cannot prohibit what is not his. He therefore concludes that the simple halakhic conclusion is that a person cannot prohibit something that is not his, as ruled by Maimonides and the Shulchan Arukh, while the later authorities tend to ignore the closing phrase, “his intent is only to cause him distress.”

Kilayim as an exception, and Rabbi Yosi’s view in Maimonides

The text notes that regarding kilayim, Maimonides rules like Rabbi Yosi that a person cannot render prohibited something that is not his by consecrating it, and therefore he does not accept the first tanna, who allows the possibility of rendering another person’s property prohibited in that way. It suggests that perhaps kilayim is an exception, unlike other places where Maimonides seems to imply that one can harm another person through disqualification or prohibition. It raises the possibility that Maimonides is actually consistent, in the sense that in principle there is power to prohibit, and only in the prohibitions of idolatry and slaughter does the presumption of “he intends only to cause distress” come into play; but it notes that this is not the usual way most later authorities understand him.

Halakhic territory: the limits of Jewish law’s operation on another person

The text formulates a meta-halakhic rule of “halakhic territory,” according to which a person has a limited domain in which his halakhic considerations operate, and outside that domain he cannot impose consequences on someone else even if the circumstances of prohibition seem to be present. It compares this to examples such as honoring father and mother according to Maharik, where parents cannot dictate whom their child should marry; to Rashi’s statement that a person cannot save himself with another person’s money; and to the discussion of taking an organ or drawing blood without the other person’s consent. It also weaves in the parable of “the clown from Bnei Brak” about “do not covet” and “do not steal,” to stress that a person does not make “halakhic calculations” about someone else’s property. It explains that in places like meat and milk there is no difficulty, because the Torah is what prohibits the reality that was created; whereas when the prohibition depends on the person’s own power or on his thought, the territorial limit prevents him from imposing a prohibition on another person’s object.

Something not in his possession: an analogy to consecration and an expansion of the question

The text brings another answer from Oneg Yom Tov, which raises the question whether, just as in consecration something must be both “his” and “in his possession,” so too in the rule that a person cannot prohibit something that is not his, it may matter that the object is not in his possession even though it is his, such as an item that was stolen. It says that the very analogy between these areas shows that Oneg Yom Tov sees the rule as part of a family of principles about the limits of legal action, and not just as a technical rule. It ends with the distinction that the laws of consecration and transfer of ownership depend on legal control and possession, whereas the rule that a person cannot prohibit something that is not his mainly concerns ownership and the inability to project prohibitory obligations onto someone else; therefore even if the item is not in his possession but still belongs to him, there is no principled obstacle to prohibiting it from the standpoint of this rule.

But according to the opinion that someone else can also prohibit it, what about the rule that a person cannot prohibit something that isn’t his? And according to Tosafot this is much harder, because Tosafot tells us that in matters where intent is required, a person cannot prohibit something belonging to someone else. So why here can he prohibit it? We said, for example, that we saw that according to the straightforward reading of Maimonides, in the laws of one who injures and causes damage, Maimonides does not establish the case specifically with partners. Maimonides does not establish it specifically with partners, so it seems he holds that any person can prohibit something belonging to another. Someone who performs labor with another person’s red heifer designated for purification, yes, has to pay. And he does not establish it with partners, so it seems that anyone can prohibit it. Maimonides’ position is like the second opinion in Tosafot, right. But according to that position it is still difficult. Why? After all, a person cannot prohibit something that isn’t his, and especially according to Tosafot, in things where intent is required, there certainly we say this principle that a person cannot prohibit something that isn’t his. So how can it be that with the red heifer designated for purification this does not apply?

Well, I said one could say — and it’s forced — but there is some sign involving the hairs, right? How do we know whether a yoke was placed on it or not? There is some sign. Two black hairs just mean that it isn’t red, that’s not a sign that a yoke was placed on it. No, no, that’s also something I remember. Meaning, how do we know whether a yoke was placed on it? If at some point they simply put a yoke on it, something changes, and then it becomes an act. And that brings us back again to… well, in any case, they did place a yoke on it, never mind. The yoke here is certainly a fact, regardless of the signs. The placing of the yoke is certainly a fact that happened, that a yoke was put on it, regardless of the signs. Fine. What is needed here is the owner’s satisfaction; intent is required here.

Now, there was room here to say — the last time we discussed the red heifer, we raised several ideas to the effect that thought regarding the red heifer, like thought regarding consecrated offerings, has the status of an act. Thought regarding the red heifer has the status of an act: serving analogous to actual serving. Meaning, your satisfaction is considered like labor, like an act. There are various implications of this that we brought there, for example regarding susceptibility and seeds; we compared it to consecrated offerings and said it stands between consecrated offerings and ordinary items. So if it really has the status of an act, then perhaps with the red heifer the thought that is required is not thought like everywhere else in the Torah. With the red heifer, the thought is the act.

We know that with consecrated offerings in general that is so: saying something to the Most High is like handing it over to an ordinary person, right? Meaning that speech or thought regarding consecrated offerings has the status of an act. We saw this also regarding piggul; we saw it in several contexts. At the beginning of the book of Leviticus I spoke about this in two or three lectures — that in this area, thought essentially has the status of an act. If that is so, then perhaps Tosafot’s distinction would also resolve this issue.

There may be room to distinguish differently. One might have said that there is a difference between a case where the thought itself disqualifies and a case where the thought is only a condition for the disqualification. Meaning, with the red heifer, suppose for example that we explained it this way: what does the Torah say? The Torah says, “upon which no yoke came,” and that is what disqualifies it. The satisfaction is a condition. Meaning, placing the yoke on it disqualifies it; the Merciful One required as a condition that there be satisfaction, because serving analogous to actual serving. Fine. But what disqualifies it? It is not the satisfaction that disqualifies it — satisfaction of what? What disqualifies it is the action I performed with it, right? It’s the yoke. So if what disqualifies is an action, then basically what comes out here is that the disqualification is a result of facts. The satisfaction is only a condition. All right? If so, then it has the status of an act, and therefore someone else can also disqualify it.

Where did Tosafot say that someone else cannot disqualify something of mine? In a place where the thought is the disqualifying element, not where it is a condition. Someone else’s thought cannot disqualify my item. For example, say there is a matter of piggul — what? Or for example idolatry, where what really disqualifies is the thought. Why? He bows down, but why does it disqualify? Obviously thought without action does not prohibit anything, but there the action is the condition and the thought is the prohibiting element. Because after all, what is the significance of that action? Obviously what matters there is that you regarded this thing as an idol. That, for example, is what prohibits it. And not only that — each stands on its own as a criterion. If there were thought alone without the act, without bowing, it would be nothing. That’s certainly not the criterion. After all, bowing without intent is also nothing — maybe in that case he just happened to be doing gymnastics right in front of the… And thought alone too.

Whenever we discuss these halakhic conceptual analyses — what is primary and what is merely a condition — you always need both things. The whole question is which of the two is the main factor and which is the condition. For example, there is a famous conceptual investigation regarding one who causes damage: if my property caused damage, why do I have to pay? Is it because I did not guard it, or because of the very fact that my property caused damage? The damaging property obligates me to pay as though I myself caused the damage. My property is some kind of extension of me. This is a dispute among medieval authorities and later authorities; many discuss it. But one has to be careful not to get confused here, because some do get confused. Clearly both things are needed — meaning, the property has to be mine, and there has to be negligence on my part in guarding it; both are required. The whole question is which of them is the basis of the obligation and which is a side condition. Meaning, whenever we make this kind of analysis, the simple assumption shared by both sides is that if you guarded properly, you are exempt. The only question is whether you are exempt because there is no basis of liability at all, or because the condition for liability was not fulfilled. That is the question, but you always need both things.

So too in idolatry, of course bowing is needed, because the fact that I thought this picture was an idol accomplishes nothing. It has to find expression in an act, but that is only a condition. The condition is that this be a thought expressed in an act. Only such thought disqualifies, but not that the act itself disqualifies. On the contrary: with idolatry, simple logic says that the thought is what disqualifies, because fundamentally the whole problematic aspect is the attitude, the thought — that you relate to such a thing as an idol. That is what disqualifies it. The fact that you served it is only a condition. So true, both elements are there, but the disqualifying factor is the thought. In such a situation you cannot disqualify something of mine. But if the thought is only a required condition, not the thing that disqualifies, and what disqualifies is the action of placing the yoke on the heifer — after all, that is what the Torah says, “no yoke came upon it” — that is what disqualifies it. So then what difference does it make who placed it there? A yoke came upon it; the facts exist. So there must be a condition of satisfaction, but perhaps in such a case this principle was never said.

And what? In idolatry a person has to give up his life rather than worship idols — and how is that always possible? Whenever a person is coerced into worshiping an idol, he has no intention at all of regarding such a thing as an idol, and yet that is what disqualifies him. Excellent question. In tractate Avodah Zarah there is a Talmudic discussion about one who worships out of love or fear, a very not-simple discussion, okay, it’s complicated, yes.

In any event, what is the basis of this distinction? It seems to me that the basis lies in the following point. What is the basis of Tosafot’s distinction in general between thought and action? Why does it matter whether an act is required — or sorry, whether an act alone is enough or whether thought is also required? It seems to me that the difference is the question of who is doing the prohibiting. Meaning, if indeed what disqualifies is the act, like mixing meat and milk, once it is mixed it is prohibited. Who prohibits it? The Holy One, blessed be He, prohibits it, not the other person. The other person only created the problematic reality; on such a reality the Torah imposes a prohibition. The Torah can prohibit even something of mine; it has no such limits.

In a situation where it depends on thought, Tosafot says that thought plays a different role than the factual circumstances. The thought is what prohibits. To prohibit — that you cannot do to someone else’s property. You can prohibit your own, not someone else’s. If you are the one doing the prohibiting, you can prohibit only your own. If you merely create the facts, the factual circumstances, but the one who imposes the prohibition upon those circumstances is the Torah, then the Torah can also impose a prohibition on someone else’s item, since the factual circumstances have occurred.

If this is really the explanation of Tosafot’s distinction, it seems to me that it is not unreasonable to extend from it the distinction I just suggested. Then what comes out is as follows: if the thought is really the disqualifying factor itself, I cannot do that. Why? Because in that case I am the one prohibiting. But if the thought is required only as a condition, while what prohibits is the action and the thought is only a condition, then that is not the issue.

Still, without the thought nothing happens. Why should the thought here be a condition? It isn’t clear why the thought should be a condition. I put a yoke on the heifer, something changed in its physiology, the Sages have a sign for it — the hairs wrinkle or something happens to them. So it’s as though he poured milk into my meat pot, and that dish would remain permitted because he cannot prohibit something that isn’t his? No, that’s exactly the point. In meat and milk there is no condition of thought at all; if the facts occurred, the prohibition applies. But with the heifer there is an explicit derivation: serving analogous to actual serving — the owner’s satisfaction is required; there has to be intent that the person benefits, as it were, from the yoke suited to that, that same satisfaction, that it is pleasing to him, and so on. And then what happens is that only once there is satisfaction does it become prohibited.

But if that satisfaction is only a condition — the Torah says that no yoke came upon it, a fact; that is what prohibits it. So the Sages derive from “serving analogous to actual serving,” through the written form and the reading form, that there is a condition that there be satisfaction. But it is quite reasonable to say that this is only a condition. The Torah states what prohibits; what prohibits is the placing of the yoke. There is just a condition. Why does it matter whether it is a condition or whether it is itself the disqualifying element? Because that is the whole logic. Tosafot’s whole distinction between act and thought is based on the question of who is doing the prohibiting. In an act, I am not the one prohibiting at all; I only created the facts, and the Holy One, blessed be He, prohibits. He prohibits whomever He prohibits. But in thought, the facts are irrelevant; the thought is what prohibits. So if my thought is what prohibits, then I am the one prohibiting, not the Holy One, blessed be He, and I cannot prohibit something belonging to another. Understood?

Now, we saw above in Maimonides that with the red heifer designated for purification, it is assumed that it is effective to prohibit something that is not one’s own, right? He does not establish the case specifically with partners, so we learned that according to the straightforward reading — and also from the Maggid Mishneh there, and from Minchat Chinukh — it works to prohibit something that is not one’s own. By contrast, in the laws of one who injures and causes damage, two laws after the law we brought there regarding the red heifer designated for purification, he says as follows: one who pours another person’s wine as a libation for idolatry, the wine does not become prohibited, because a Jewish person cannot prohibit something that is not his own. But if he had a share in it, or if he was an apostate, since he is like a gentile, or if he had been warned and accepted the warning, since he is like an apostate, then he does prohibit the wine and is liable to pay. So it seems that with a wine libation a person cannot prohibit something that is not his own. All right?

In the laws of slaughtering… What is an apostate? I didn’t understand that. What? Only a Jew cannot prohibit something that is not his own. Ah, the emphasis is on a Jew. A Jew who pours wine as a libation to idolatry cannot prohibit something that is not his own. If a gentile touches wine, it certainly becomes prohibited. And why? People always ask that; I’ll bring it later, but since you’re asking I’ll say it already now. Seemingly the whole law of idolatrous wine is proof that someone else can prohibit my property. The whole concept of idolatrous wine is that a gentile comes and touches my wine and it becomes prohibited, so someone else prohibited my wine! But there that is exactly what was prohibited — the wine touched by a gentile. Exactly. They did not prohibit… so there is no proof from there that this is the transfer of a prohibition. Exactly, there is no proof from there. Why? Because the whole law of idolatrous wine is just that — meaning, that’s what the Torah said; it obviously isn’t relevant here, it’s like piggul, what we asked earlier. Therefore there is no proof from the law of idolatrous wine that a person can prohibit what is not his own. Or a gentile — we’ll discuss that.

No, wait — the very fact that the Torah says that such a thing is prohibited. No, I’m not saying that… I meant something else: if you’re talking about the rabbinic decree of ordinary gentile wine, then I can say that what they prohibited was wine touched by a gentile. But if you’re talking about the prohibition of idolatrous wine as an accessory of idolatry or something like that, then how is that different from all other forms of idolatry? Maybe it’s the same thing. I didn’t understand. No — if you’re talking about ordinary gentile wine, then you can say: from my standpoint, the Sages decided to prohibit any wine touched by a gentile, even if it’s… No, but the Torah prohibits a libation. Yes, but what sort of libation does it prohibit? If someone else cannot prohibit my wine, then what does “my” mean? Someone poured my wine as a libation. So? If someone poured… he prohibits it only for himself. Yes. No — he poured his own wine as a libation, it becomes prohibited wine, and then it is prohibited for me too. But if I have wine and some gentile came and grabbed it and poured it as a libation, maybe it is permitted? I don’t know, that needs to be checked, needs to be checked.

Meaning, there are later authorities — as I said — who actually raise a difficulty from idolatrous wine itself: the very fact, the very law of idolatrous wine proves that a person can prohibit something that is not his own. All right? And if a Jew goes and pours your wine as a libation, is it prohibited? No — that is exactly what Maimonides says here: you cannot prohibit something that is not my own. Why? It is like bowing to an idol — what do you mean it does not become prohibited? So then I didn’t understand the story with the apostate. What? Why is it not prohibited? Suppose a gentile pours wine as a libation, or even secular Jews — ordinary gentile wine is something else — it is not prohibited. Even ordinary gentile wine? No, but ordinary gentile wine was prohibited… idolatrous wine got mixed in; that is a rabbinic decree. No, they prohibited ordinary gentile wine because of intermarriage and their wine because of… But if a Jewish man tried to pour a libation, they could not make it into a libation because it is not theirs, so would they prohibit ordinary gentile wine based on such a principle? Yes, that is a distancing decree; it has nothing to do with my actually pouring a libation. A distancing decree that one may not drink their wine.

No, specifically he says that specifically — alternatively… first of all, the opposite: a gentile can indeed pour the wine as a libation. But he is talking about Jews who do not observe the Sabbath, say. But why are you prohibiting their wine? Because you regard them as gentiles, as apostates, and apostates can indeed prohibit. But not because of idolatry — it is because of distancing from them, simply to keep away from them, not to drink wine with them. But Maimonides says that an apostate, since he is like a gentile, prohibits another’s wine. Alternatively. Right? Correct. So why? Because there that is the substance of the law — to keep away from him. That is the point. The prohibition there is the very law that was stated there: to keep away from him. And then when you speak about a Jew who pours another person’s wine as a libation to idolatry, that is like bowing down. There it is a case that obviously depends on thought and everything; it is like bowing, and there indeed a person cannot prohibit something of another. “Since he is like a gentile” is not because of… no, alternatively, it is because one must distance oneself from him like from a gentile. Rabbinically? Yes, rabbinically.

So basically in Maimonides here, in the laws of slaughtering by the way, it says: two people holding a knife and slaughtering, and so on. Maimonides says there in general: no Jewish person can prohibit something that is not his own. That implies that a gentile can? About that I’m not sure; I really don’t know. The question is whether he states this principle in general only regarding a Jewish person, or whether he intends to make this distinction here in this context. I don’t think he means to introduce some change here. It implies that a gentile went and did a lot of damage. Fine, maybe — okay, let’s leave that.

But say mixed species — if a gentile sowed mixed species in my field, I think that according to the first tanna, we are now speaking only according to the first tanna, who says he can prohibit another person’s property, I don’t see why not, even a gentile. I don’t know — does Maimonides rule like the first tanna regarding mixed species? No, Maimonides rules like Rabbi Yosei, that one cannot prohibit in such a case, one cannot prohibit with mixed species. Because Maimonides rules like Rabbi Yosei. Rabbi Yosei says that a person cannot consecrate something that is not his own. And what about a gentile? You can check. What belonging to a gentile? That a gentile might indeed make my mixed species prohibited? That’s the question. I don’t think there is such a law in Maimonides. Maimonides does not mention such a thing.

Regarding slaughtering, Maimonides writes here: two people who were holding the knife and slaughtering — one intended it for something because of which the slaughterer’s slaughter is prohibited, and the other had no intention at all, and even if he intended it for something permitted — then it is invalid. Likewise if this one slaughtered half and that one, and so on. In what case is this said? When he had a share in it. But if he has no share in the animal, it is not prohibited, because no Jewish person — again, “Jewish person” — prohibits something that is not his own. But here he also adds a reason: because his intention is only to upset him. So it seems he can prohibit another person’s property. So here he does not really intend to prohibit it when he says that he slaughtered it for some prohibited purpose — it is just to hassle him; he did not really intend to prohibit it. So it seems that in principle one can prohibit it. And there is a presumption that a Jewish person does not commit a transgression if he gains nothing from it. Meaning, if a person prohibits something to another, he did not intend the prohibition at all; he only intended to annoy him. That is what he says: “his intention is only to upset him.” Yes. Therefore he does not prohibit it, but in principle, if he had wanted to, he could have prohibited it. But in essence one can prohibit it.

So here the later authorities already comment on this point, because here it seems that a person does not prohibit what is not his own, right? And in pouring another person’s wine as a libation to idolatry as well, a person does not prohibit what is not his own, right? But with the red heifer designated for purification we saw, according to the straightforward reading of Maimonides, that even someone else who performs labor with another person’s red heifer designated for purification is liable to pay — meaning he does prohibit the other person’s red heifer designated for purification. So what exactly is the difference between them?

So what shall we say? Perhaps there is some difference here in the role of thought. What is the role of thought? That here, when Maimonides says that a person prohibits another person’s red heifer designated for purification, it is because there the thought is only a condition. The thought is only a condition, as we explained earlier. The thought is only a condition for the prohibition, but what creates the prohibition is that a yoke came upon it. Therefore there indeed a person does prohibit something that is not his own, right? Here, in these two places, we are talking about idolatry, the law of libation, right? Or slaughtering, where the thought is certainly the prohibiting factor, since the slaughter itself on the contrary is what ordinarily permits. The whole problem here is that I slaughtered it for the sake of idolatry or for the sake of something that prohibits it. So all that prohibits here is only the thought. And once the thought is the prohibiting element, in that respect a person has no power to prohibit another person’s property — that is the apparent answer.

But I’m saying: the later authorities comment on Maimonides’ reasoning, because his reasoning is that “his intention is only to upset him.” Meaning, in principle a person could prohibit it; only here he does not intend that. But if he had intended it, he could have prohibited it. If we had some side case where we knew he intended it? Yes, where he serves — doesn’t matter — or an enemy took an animal and slaughtered it under an idol. I don’t know. Basically he could, in circumstances where we know he truly intended it. It doesn’t matter for the moment; this is a theoretical question. The point is that if one reads Maimonides’ reasoning precisely, then it seems a bit that in principle he really can.

And on the other hand, look at the wording: “no Jewish person prohibits something that is not his own.” So is there some presumption about a Jew that he does not commit prohibitions? Even without that, perhaps this reasoning already applies to the previous law too — I don’t know. Here there is some room to hesitate. If indeed we take this reasoning literally and apply it also above to idolatrous wine, then in practice what emerges is that Maimonides throughout holds that someone else can prohibit another person’s property, right? With the red heifer designated for purification, with slaughtering, and with idolatrous wine too. The whole point is just that he does not intend it, but if he intended it, he could prohibit it, right? With the red heifer designated for purification, why does he not say that there? Because with the red heifer designated for purification we are not dealing with a prohibition. It was simply disqualified, but I did not commit a prohibition. Therefore there we do not have this presumption that he does not really mean it seriously, but only means to upset him.

Here, with idolatrous wine and slaughtering, it is a prohibition. Therefore — one second — then according to Maimonides what comes out in practice is that consistently a person can indeed harm another, except for one example. Mixed species. Why? Because there Maimonides rules like Rabbi Yosei and Rabbi Shimon, that a person does not prohibit another person’s property. We are back — back to the Bartenura — where somehow it comes out that essentially a person does prohibit what is not his own, and mixed species is the exception. There is perhaps a verse or something about it. Maybe that is what the Bartenura means. Then all the Talmudic passages that say a person does not prohibit what is not his own would be only because of this presumption in Maimonides that “his intention is only to upset him,” not because he really lacks the power to prohibit. The later authorities did not learn that way — that I’ll tell you already now. Look at how Maimonides adds this — it is a kind of scriptural rationale, and it is not clear…

Then it is also clear why with the red heifer he can prohibit it. What? Maybe now it is clear why with the red heifer he can prohibit it, because what does “to upset him” mean there? He isn’t just upsetting him; he is benefiting from it. That’s what I said before: with idolatrous wine and slaughtering we are talking about committing a prohibition, and a Jewish person does not intend to commit a prohibition. So presumably he merely told him that he did it; he did not really do it. But with the red heifer designated for purification, he is not violating any prohibition; it is a fact that he placed a yoke on it. And the fact that he placed a yoke on it, even if he… I understood that “to upset him” does not mean he is merely fooling him, but rather that he wants to cause him damage, yet not really… that’s how I understood it: he does not really want to do the substantive act, such as genuinely pouring it as a libation to idolatry; he only comes to cause damage to the other person. Fine, but then it really is not a libation, because it is not idolatry.

And with the red heifer designated for purification, you cannot say that he merely came to cause damage, because he really does benefit from it. And that is the point. You are saying not that he is fooling him, but that… we are saying there is a presumption that a person does not do the… that all he is doing is to harm the other person and not really do the essence of the prohibition, the transgression. By contrast, with the red heifer designated for purification, he benefits from the fact that it carried his load for him. So there is no issue here of merely coming to cause damage. And one who drinks wine… well, we would need to check or think of a situation where he does benefit in the case of idolatrous wine. Meaning, where he has some benefit from the libation of the wine or something — I don’t know.

Anyway, I’m saying: this Maimonides — the later authorities tend to ignore this ending, “his intention is only to upset him,” and their assumption is that according to Maimonides a person does not prohibit what is not his own. That is the assumption of the later authorities. Fine, there is… there is… in Oneg Yom Tov, he really does — yes, he is the one who, I think, the only one I saw at least who addresses this issue. Oneg Yom Tov, section 59. I brought Maimonides there again… I didn’t bring it; I need to bring it. This reasoning that “his intention is only to upset him.” So the Lechem Mishneh there writes — look at the Lechem Mishneh — “no Jewish person prohibits,” and so on, but a gentile does prohibit, as explained there, where we establish the baraita as dealing with two people holding the knife, with a Jewish apostate. Meaning, a gentile does prohibit, and a Jewish person does not prohibit.

We saw according to Maimonides’ reasoning, “his intention is only to upset him,” that it appears even a Jewish person can prohibit. There is no essential difference here between a gentile and a Jewish person — say, for example, a Jewish apostate or something like that. In Oneg Yom Tov, section 59, he writes: behold it is explained that he interprets Maimonides’ view as follows — he is now referring to the Lechem Mishneh — behold it is explained that he interprets Maimonides’ view to mean that a person prohibits something not his own by means of an act. For with a Jewish person we say that he intends only to cause distress. So he does explain this reasoning of Maimonides.

What does he say? There is another Talmudic discussion about whether one can prohibit another person’s property by means of an act. It may be that all the rule “a person does not prohibit another person’s property” applies only by means of thought. But if he performs a concrete act — not Tosafot’s distinction, but if he performs a concrete act — then he can prohibit even another person’s property. There is such a dispute in the Talmud, but the question is what the Talmud’s conclusion is; it is not entirely clear. Oneg Yom Tov explains Maimonides’ reasoning against that background: since in idolatrous wine, or wherever he brings it, in slaughtering, Maimonides gives the reason that “his intention is only to upset him” — why? Because without that, a person really could prohibit it.

Why? But isn’t it true that a person does not prohibit what is not his own? That is what we asked. So why do we need this reason? He says no: when it is done through an act, Maimonides rules that one can indeed prohibit another person’s property. Therefore here he needs this special reason, “his intention is only to upset him,” because without that reason he would indeed have succeeded in prohibiting it. Why? Because he does it through an act. It is only where he does it through thought that a person does not prohibit what is not his own.

I thought “to upset him” maybe meant — that’s how I understood from the rabbi’s words — that he only tells his friend, “Look, I had such-and-such intention while you slaughtered it.” That’s how I understood it too; Yossi here said something a bit different. I actually understood like Yossi. Fine, okay, that’s possible too; I hadn’t thought of it. What, in slaughtering? No, in slaughtering it is an act. What act does he perform? He performs an act, but the essence is thought. It is thought, but he performs an act — it is bound up with an act. In a place where it is bound up with something practical, that is what he says makes it prohibitive. This raises a big question: where is that not the case? Where not? What sort of prohibition is not done by means of an act? Bowing in idolatry — well, you bowed, so there too an accompanying act was added. So I really don’t know exactly how to explain this point. In any case, Oneg Yom Tov backs away from it. But Oneg Yom Tov proves that no — even by an act, a person cannot prohibit what is not his own. Regarding “his intention is only to upset him,” I don’t remember whether he gives an alternative explanation.

In any event, what comes out for our purposes? What comes out for our purposes is that in the simple understanding at least, a person does not prohibit what is not his own, in the final analysis, and that is how Maimonides rules in practice, and so too in the Shulchan Arukh. According to Tosafot, there is a distinction whether thought is required or whether an act alone suffices. We explained that distinction by saying that the question is who is doing the prohibiting. If thought is required, then the one who thinks is the one prohibiting. If acts alone prohibit, then the one prohibiting is the Torah; the acts merely create the prohibited circumstances. In light of that, we also distinguished within the world of prohibitions that require thought, between whether the thought is a condition for the prohibition or whether the thought is the prohibiting factor itself.

In any event, for our purposes what comes out is that there is no essential possibility of prohibiting something belonging to someone else. There is no such essential possibility. Even where it does exist, such as where thought is not required — when I mix the meat and the milk — it is because I am not the one doing the prohibiting; rather, it is the Torah. But essentially, under no circumstances can I prohibit something belonging to another. Even in places where it does exist, that is only because I am simply not the one prohibiting, that’s all. But essentially a person cannot touch what belongs to another. All right? That is basically the conclusion we reached.

Without Maimonides’ explanation that “his intention is only to upset him” — yes, I am currently ignoring that explanation — that is also the conclusion of Oneg Yom Tov. I think most of the later authorities ignore this reasoning and continue with Maimonides as with mixed species, as everywhere else: a person does not prohibit what is not his own, period.

Why really not? Even in meat and milk, in principle, if the person were the one doing the prohibiting, then even if I mixed meat and milk belonging to my friend, it still would not become prohibited. All the factual foundations exist, and nevertheless the law would not apply to them. Why not? Clearly there is some sweeping rule here that says there is a limit to the sphere in which I can act. I’m returning to the concept of halakhic territory, which I already discussed. I think we really see here a very strong expression of that point of halakhic territory, because what is happening here? After all, all the halakhic conditions for a prohibition to arise have been fulfilled. Everything is in place. The meat is mixed with the milk, the mixed species — the grain is mixed with the vineyard — so why is it not prohibited? The Torah says that such factual circumstances are prohibited, period.

There is some meta-halakhic rule: all your considerations, all the implications of your actions, are confined to a very limited area; only within that can you act. What is outside your area you cannot affect, even though according to straightforward halakhic reasoning it should apparently have been prohibited. What difference does it make whether it is within my radius or already in someone else’s domain? No, also in the lectures here, say regarding honoring father and mother. I mean on the halakhic plane. There are situations in which, according to Jewish law, the results of my actions should have generated some legal status. But since it concerns someone else, it does not apply. Even though there is no source in verses and nothing at all. Like honoring father and mother: my parents tell me not to marry a certain woman, and I want to marry her. So the Maharik says I do not have to obey them. And that is even according to the opinions that say there is an obligation to obey parents not only in matters that directly concern them — where they want help with something or the like — but also in matters where they command me. Even according to those opinions — and this is a dispute among medieval authorities — even according to those opinions, the Maharik says that regarding marriage they cannot dictate to me what to do.

Why not? According to the dry halakhic rules, I ought to have obeyed them in this matter too. He says, true, but the dry halakhic rules apply only in a very defined domain — in the domain that concerns the parents. In the domain that concerns how I live my life, the most fundamental aspects of my life, my parents cannot dictate to me what to do. That is an example of halakhic territory.

Another example: a person cannot save himself with another person’s money. According to Rashi, this is literal. Rashi in Bava Kamma says this; it is a singular view, but it is Rashi’s view. What does that mean — be killed rather than transgress theft? The answer is yes: be killed rather than transgress theft. Why? Theft is not one of the three cardinal sins. Correct — the prohibition “do not steal” is set aside in the face of saving life. But the reason you do not take your fellow’s money is not because of the prohibition “do not steal,” but because it is his. It is outside your domain. Your halakhic calculations — whether “do not steal” is set aside or not set aside — are calculations you can make only about yourself. What concerns the other person: all your calculations do not cross the boundary of your territory. Even though the calculations are seemingly valid. The halakhic calculation says that “do not steal” is set aside before saving life, like all other prohibitions. So what is the difference?

Did the Torah, in its dry halakhic reasoning, not intend that a person should sacrifice his life because of the prohibition of theft? No — Rashi says no. Rashi says that according to Jewish law, a person cannot save his life with another person’s money. And I also already spoke about the medieval authorities who disagree with him — even if the other person is standing there, and by not helping he violates “do not stand idly by your neighbor’s blood.” Sorry — he tells him, “I do not want you to use it,” and he is violating a prohibition. The Rashba, who indeed disagrees, says he still cannot take it. The Rashba, who disagrees with Rashi — for example in a responsum of the Rashba — does not disagree in an essential way. He only says that since the other person too is obligated to give the money for his rescue, the money is already obligated toward that use, and therefore he may take it. But if that were not so — if my fellow did not have such an obligation, from the side of “do not stand idly by your neighbor’s blood,” not from the side of “do not steal” itself — without “do not stand idly by your neighbor’s blood,” it would have been forbidden for me. To that extent the Rashba agrees that it is forbidden.

So there is a very strong statement there. I spoke about “do not covet” — you know, with that joker from Bnei Brak, my friend the joker, who saw a nice good book by someone sitting with us at the table. He said to him, “Listen, there are two options: either violate ‘do not steal’ by having the book with me, or violate ‘do not covet’ by leaving the book with you. So what do you suggest I do?” What is wrong with that reasoning? Aside from the fact that it is halakhically wrong — but even if it were right, what is wrong with it? You are not supposed to make halakhic calculations about someone else’s book. It is outside your territory. You and your halakhic reasoning — and the reasoning is correct, again, I am always talking about situations where the formal halakhic reasoning is correct, and in principle the conclusion really does follow from Jewish law — and yet there is some meta-halakhic rule. It has no source. It is based on logic. None of these things has a source. All the things I mentioned up to now, none of them has a source — no verse, nothing. And in every place it is clear to the medieval authorities, to the Talmud, everywhere according to the circumstances, that there is no such thing. Outside the domain, these considerations are not relevant.

You are in a case of saving life — I only heard the end — can you remove a kidney from someone in order to save yourself? Or not? That depends exactly on whether the other person is obligated to give the kidney. But maybe I can just take it too — what’s the problem? It’s only the prohibition against causing injury, right? And causing injury is set aside in the face of saving life, no? What’s the problem? Why is it forbidden? All prohibitions are set aside. I’m not killing him, I’m only injuring him. It is forbidden because you are to make your calculations about yourself, not about the other person’s kidney. The other person’s kidney is outside your domain. That is what is called halakhic territory. Even if all that were true — and it is not — it imposes duties on the other person to help you. You are not to decide for him how he will help you and how he will not; he will decide. If he decides to give you a kidney, you can thank him. You cannot take his kidney. It is very serious if I do not donate blood to help someone, but they cannot just come and draw blood from me. That is what I called halakhic territory.

“A person does not prohibit what is not his own” is another example of halakhic territory. The meat and the milk are mixed; the Torah says that when they are mixed, it is prohibited. The mixed species — the grain and the vine are mixed; the Torah says that when they are mixed, it is prohibited. Then the Sages come and say: there is no such thing — outside your domain, it does not apply. If you want to prohibit what belongs to the other person, it will not work. So in meat and milk we do not say that? In meat and milk we do not say that because the Torah is the one prohibiting. That is what Tosafot would explain: there is a difference between act and thought. But in principle, if I were the one prohibiting, I truly could not do it, even though all the circumstances were present, because I cannot touch what lies outside my domain with all my clever and correct halakhic calculations. What is the difference between meat and milk and mixed species there? In mixed species there is thought — that is what Tosafot said yesterday.

Now I really need to finish, I see. I’ll just bring two examples. First point: Oneg Yom Tov in another responsum, a long responsum dealing with “a person does not prohibit what is not his own,” discusses a responsum of the Rivash. Can a person prohibit something that is not in his possession? You know that regarding consecration or transfer of ownership there is a question whether a person can consecrate something. If it is not his, of course he cannot consecrate it. He cannot transfer it; he cannot consecrate it; it is not his at all. But what about something that is not in his possession — what does that mean? For example, a robber stole it from him. So the Talmud says: neither this one nor that one can consecrate it. This one cannot because it is not his, and that one cannot because it is not in his possession. The robber cannot consecrate it because it is not his. I cannot consecrate it because it is not in my possession; it is in the robber’s possession. Meaning, two things are needed: that it be mine and that it be in my possession, for me to be able to consecrate it.

Oneg Yom Tov asks: do we say the same thing regarding the rule that a person does not prohibit what is not his own? What happens if it is not in my possession but it is mine? Can I prohibit it or not? Someone stole my, I don’t know, wine, and it is in the hands of a robber. Now I come and pour as a libation the wine that is in the robber’s possession. It is not in my possession; it is mine, but it is not in my possession. Can I do it or not? First of all, the very fact that Oneg Yom Tov raises this question already demands explanation. What is the connection at all? The reason I cannot transfer or consecrate something that is not mine is because I have no control over it, and for consecration you need control. But “a person does not prohibit what is not his own” is just a halakhic rule; it is not about effecting a legal status, it is not connected. To transfer ownership, you must be the owner — that is obvious. So what? But that is not because a person does not prohibit what is not his own. You simply cannot transfer something that is not yours. How can it make sense to transfer something that is not yours? So why compare that to “a person does not prohibit what is not his own”? Yet Oneg Yom Tov does compare them.

Why does he compare them? Because he understands that “a person does not prohibit what is not his own” belongs to the same family. The reason you cannot do it is that it is really outside your domain — that is why you cannot. It is not some technical rule. It is like the fact that you cannot consecrate something outside your possession. Then he asks: what if it is not in your possession as well? Fine, if it is not yours, I understand. But what if it is yours, yet not in your possession?

There he indeed says no, that it is not similar to consecration. Why not? He says there is some technical point, because even regarding consecration itself there is a dispute about something not in one’s possession — whether one can nevertheless consecrate it — what does that have to do with it? There is a dispute. But in practice, a person cannot consecrate something not in his possession. So then let us compare them. What is said regarding consecration… But if I am here and my property is in America? I still can consecrate it. Not also? And would that too be considered not in one’s possession? No — property that is yours and under your ownership, you can consecrate it. Even if it was stolen from you? No matter. And if it was taken from you by robbery? Not just immovable property — even my watch that is here and not abandoned, I can certainly consecrate. Certainly you can. Only if it is with a robber, that removes it from my possession, maybe into the robber’s possession. Now the question is: what happens regarding “a person does not prohibit what is not his own”?

That is what Oneg Yom Tov asks, and he says that here it will be different. Why will it be different? Looking at his language — and we don’t have time to get into it — it seems to me that what he is saying is this: true, both belong to the realm of halakhic territory — in my terms, that is how I put it. Both the problem of consecrating something that is not mine and not in my possession, and the matter of not prohibiting something that is not mine. But there is still a big difference between the two; they are two kinds of principles of halakhic territory.

There is a principle of halakhic territory that derives from rights. Something that is not mine, I cannot transfer and I cannot consecrate. We also cannot prohibit, and cannot consecrate, and cannot transfer, because it is not mine; I have no control over it. In that sense it lies outside my territory. But “a person does not prohibit what is not his own” does not come down to possession — sorry, it comes down to ownership. Why? Because what is the problem with prohibiting something that is not mine? It is not because you lack the monetary-legal power to do it; this is not a legal question. We are in the realm of prohibition and permission — meat and milk. What does that have to do with a legal problem? The problem is that you cannot impose prohibitions on someone else. But if that thing is mine, only it is in a robber’s possession, then what is the problem? There is no problem with that.

Meaning, true, it is similar in a certain sense, but still different. In the context of consecration and transfer of ownership, it may be that the fact that it is not in my possession is enough to prevent me from transferring or consecrating it. Why? Because it is not under my control, and therefore my legal power over it is weak. But regarding “a person does not prohibit what is not his own,” this does not come down to legal power. That is not the legal problem. The problem is that the Holy One, blessed be He, is not willing for me to step outside the territory that pertains to me; I cannot prohibit. I cannot project halakhic consequences of prohibition onto someone else, start running his life by deciding what is prohibited for him and what is permitted for him. But all that is only if it belongs to someone else. If, however, a robber took something of mine, wine, and I now try to pour the wine as a libation, is there any problem with that? Did I harm the robber? The wine is mine, so what if it is not in my possession? So even though it is not in my possession, clearly I can prohibit it. And that is what he says there — the Rashba too, in his very wording. There are also implications regarding ownerless property; there are all kinds of practical ramifications of the view that this comes from territorial power. Let’s stop here.

The Ra’em — why in one of the lectures he brought his famous expression. Hello? Yes. We’ll still talk a bit more about nullification, and we’ll get another page. A new page, a new page.