Conditions – Lesson 8

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[Rabbi Michael Abraham] But he didn’t make the fundamental, theoretical distinction. He didn’t arrive at natural law. Fine, I’m not blaming him, but it isn’t there in his work. In the Tur and the Shulchan Arukh it is there. That’s it. For us too, the laws of nature were created by the Holy One, blessed be He, not by Einstein and not by Newton. Fine, but Newton and Einstein grasped them and discovered them. It’s the same thing. The Tur and the Shulchan Arukh were the first to understand that there is, or to grasp, not to understand. Maybe people understood it earlier too, but they grasped the fact that Jewish law is divided into two major parts. The legal part, and the part—I don’t know what to call it—the religious, ritual part, whatever you want, which does not exist in other legal systems. The legal part exists in other legal systems too. Every legal system deals with regulating monetary law and personal status between people. Every legal system. In that, there’s nothing unique about Jewish law. There are differences in the details, in what the laws say, but not in the category. Categorically, this exists in every legal system. But besides that, there is another part, another category in Jewish law that does not exist in other legal systems. And there isn’t even a hint of this in Maimonides. In the Tur and the Shulchan Arukh it’s very clear, right on the surface. That’s their division. And when you understand this, it illuminates a lot of things. You’ll see, it illuminates a lot of things people don’t understand. The moment you understand it, that’s the idea of scientific progress. When you understand the conception, the broad category, then you also understand the details better. And the smaller distinctions take on meaning when you understand that they are part of some larger category. Because you understand that they have some common root that you didn’t see before the larger category was created, or at least it wasn’t clear before the larger category was created. Earlier I asked you about charity and interest. It was pretty hard to answer why that isn’t in Choshen Mishpat. Because at a simple glance, Choshen Mishpat is monetary relations between one person and another, so charity and interest should be there too. But the way I’m saying it now, you understand why charity and interest are not in Choshen Mishpat—it’s obvious. So there you have the gain from the categorical distinction we made. Why isn’t it there? It isn’t there because in both charity and interest, you don’t have rights; I have obligations. Therefore, the definition of Choshen Mishpat is not monetary relations between one person and another, but relations of obligations and rights between one person and another. That is the correct definition of Choshen Mishpat.

[Speaker C] There’s something to this. I always thought about the Book of Holiness. If we look at the Book of Holiness in Maimonides, what does it contain? Forbidden sexual relations, forbidden foods, and slaughter. Forbidden foods and slaughter, in the Shulchan Arukh’s category, would be Yoreh De’ah, whereas forbidden sexual relations are in the Order of Women, right? It would be in Even HaEzer, it would be in Even HaEzer according to Maimonides.

[Rabbi Michael Abraham] But the truth is that it really belongs in Yoreh De’ah and not in Even HaEzer, in the Shulchan Arukh too. Because when you talk about forbidden sexual relations—say, when you talk about forbidden sexual relations in themselves—not in the question of whether betrothal takes effect, or what it means on the legal level, but simply the prohibition, whether you violated the prohibition of intercourse or not, that’s Yoreh De’ah, not Even HaEzer. It is forbidden for you to have relations just as it is forbidden for you to eat forbidden foods. Even HaEzer deals with regulation, regulating relationships between people in society. Are we married, divorced, what are our mutual obligations to one another.

[Speaker C] What you said about relations of rights and obligations—that really fits Yoreh De’ah and not Even HaEzer. Right, right.

[Rabbi Michael Abraham] So in short, look, I’ll bring a few examples to clarify this point. What? Obligations without rights? I don’t think so. I don’t think such a thing can exist. What is a right? A right means that others have to respect it or not violate it. An obligation without a right exists, but a right without an obligation—I don’t think that exists. Let me maybe bring a few examples. Look, there’s a story that Rav Yechezkel Abramsky brings. He has a pamphlet on monetary law—or maybe it was his father-in-law, Rabbi Yerushalemski. No, it was Rav Yechezkel Abramsky himself. He was head of the religious court of London, right? The author of Chazon Yechezkel on the Tosefta. He was head of the religious court of London. He says that once a Jew came to him and said: Listen, Rabbi, I borrowed with interest from someone, and I paid him the interest. Then I sued him in religious court to return it to me—fixed interest is recoverable through the court. This was a religious court in London. In London apparently there was a hierarchy; there were local religious courts and he was head of the great religious court of London. Apparently there were several there, I don’t know. So in one of the courts he went there and sued the lender to return the interest. And the court said that the lender did not have to return the interest because it was not fixed interest. Because fixed interest means interest stipulated at the time of the loan, and only that is recoverable through the court. Unstipulated interest is not recoverable through the court. So he said to them: Write for me, “On what grounds did you judge me?” “On what grounds did you judge me”—give me the reasoning, why you think that is the law. They don’t want to write it for you, they told him. He came to Rav Yechezkel Abramsky as head of the great religious court of London and said to him: Look what they’re doing. They wouldn’t even write for me “On what grounds did you judge me,” so I can’t even appeal. After all, “On what grounds did you judge me” is so I can appeal; then I have the reasons, I go to the great religious court and say, look, these are the reasons, I don’t think they’re correct, you tell me.

[Speaker C] “Kim li”—once it’s known here…

[Rabbi Michael Abraham] No, “kim li” is something else.

[Speaker C] “Kim li”—if it was ruled according to that opinion…

[Rabbi Michael Abraham] Fine, that’s another discussion, the question of “kim li.”

[Speaker C] The question of “kim li” is a joker card, to say “kim li.” If you don’t tell him anything, he can always say “kim li” if you don’t tell him the source. Yes, fine, okay. Could be.

[Rabbi Michael Abraham] In any case, the basis is a basis for appeal, not for “kim li,” because “kim li” has no basis at all in the Talmud; it’s just an invention. But then he went to appeal to Rav Yechezkel Abramsky. No, the invention is “kim li.”

[Speaker C] An invention? Yes, obviously.

[Rabbi Michael Abraham] Something that is…

[Speaker C] Anchored in the medieval authorities (Rishonim), it appears in the later authorities (Acharonim), at the end of the period of the medieval authorities…

[Rabbi Michael Abraham] And in the later authorities—there’s no source for it.

[Speaker C] In any case, so he came to Rav Yechezkel Abramsky.

[Rabbi Michael Abraham] So Rav Yechezkel Abramsky gave him the third slap in the face. Meaning, first of all they ruled against him—that was slap number one. After that they also didn’t want to write for him “On what grounds did you judge me”—that was slap number two. And then he appeals to Rav Yechezkel Abramsky and gets the third. He tells him: They were right. Also in not writing for you “On what grounds did you judge me.” What’s the idea? He himself brings this case to explain the idea. He says: When you come to claim the interest, you are really functioning here as a witness, not as a litigant. You are a witness that there was a loan with interest here and someone took interest. And now go home, you finished your testimony, go home. If we decide that this was fixed interest, we will extract the interest from him and give it to you. But this is not your claim against him; the interest is not owed to you. You signed a contract with him, you agreed on a loan with interest, and you fulfilled what the contract obligated you to do. What do you want? He owes you nothing. There is a prohibition against taking the interest, and Jewish law says that if someone took fixed interest, we as a court will extract the interest from him and return it to the borrower. But we return it to the borrower not because it belongs to the borrower. We are basically taking the interest out of his hands because we don’t want it to remain with him. This is by virtue of coercion to fulfill commandments. It is not the court coercing him on your rights. It is coercion to fulfill commandments, just as a religious court can force you to build a sukkah. It is not because someone’s rights were violated. Same thing here. The religious court forces you to return the interest by virtue of coercion to fulfill commandments. And in principle you could even throw the interest into the sea. Can the borrower act in an independent standing? Right. The borrower is only a witness, that’s what I said. He testifies that there was a loan with interest here, because the religious court can’t know that on its own.

[Speaker C] He doesn’t need to initiate on his own, the initiative…

[Rabbi Michael Abraham] Is from the borrower, but he isn’t suing at all. Right, he is not here in the status of a litigant. Not in the status of a plaintiff. In the status of a witness. You told us what you had to tell us, now go home. If the money comes to you, apparently we decided that you should get it, and if not, then not. You are not a party to the matter. So therefore they tell him: Since that’s the case, why on earth should they write for you “On what grounds did you judge me”? They didn’t judge you at all. You are not the litigant who was judged. You are a witness. How can a witness ask the court to give him the reasoning for the ruling? What does that have to do with anything? The litigant can ask for the reasoning for the ruling. And therefore they really did not judge you, so they do not need to give you the document of “On what grounds did you judge me,” the reasons of “On what grounds did you judge me.” You are a witness. And that is exactly the point I’m talking about here. That is why interest appears in Yoreh De’ah. Interest appears in Yoreh De’ah because even when it is recoverable by the court as fixed interest, that is not because you have some right and are claiming it. It is recoverable by the court by virtue of coercion to fulfill commandments. That belongs to Yoreh De’ah. Also, if someone does not separate terumot and ma’asrot, the court will force him to separate terumot and ma’asrot—but not because the Levite has rights to the tithe, but because you are eating something forbidden if you have not separated terumot and ma’asrot, and the court compels fulfillment of commandments. That is why interest appears in Yoreh De’ah. Just think for a second about the person. Think a little about the case. He agreed to pay interest. He’s really a total lowlife. He agreed to pay interest and because of that he got the loan; otherwise he wouldn’t have gotten the loan. So he paid the interest and now he goes to the religious court and says: Return the interest to me. Meaning, he deceived the lender by agreeing to pay the interest, got the loan on that basis, and now he’s also complaining. What? Yes, exactly. And now he’s also complaining. Now true, the lender wasn’t okay in taking the interest, everything’s fine, but you certainly aren’t a complete saint. That’s obvious. In any case, for our purposes, the point is that the interest is not owed to you, and therefore interest appears in Yoreh De’ah and not in Choshen Mishpat. Exactly the same way that a poor person cannot sue me if I didn’t give him charity, even though in that situation let’s say I was obligated to give charity according to the laws of charity. But that’s Yoreh De’ah. Yoreh De’ah means that the charity is not owed to you. You cannot sue me. I’ll tell you more than that. I had another case once. There was a student of mine in Yeruham. I had already left Yeruham. And this student of mine in Yeruham rented an apartment from some Jew from Yeruham. And some dispute arose between them regarding the rental. So they both agreed that they would ask me. Whatever I said, they were prepared to do. So my student calls me, describes the case to me, says: What do you think the law is in such a case? So I said to him: In my opinion the law is such-and-such, I think you are exempt. My student was exempt, he was right in this dispute in my opinion, okay? I don’t even remember what the details were. Fine. That evening I get a phone call from the other guy, a resident of Yeruham, not from the yeshiva. I get a call from the other guy, he says to me: What, you didn’t hear me at all, and how can you decide a bottom line without hearing the other side? I tried to explain to him that this was not a court ruling; I wasn’t sitting as a judge. As a judge you don’t conduct hearings over the phone. He asked me a halakhic question, and on a halakhic question I told him my opinion. Obviously, if the facts are not correct, then I said nothing. You are not obligated to obey what I said; I told him it has nothing to do with that, it doesn’t obligate you in anything. Meaning, if I said that in light of the facts he presented to me, in my opinion the law is thus and so—that’s a halakhic question, not a court ruling. Someone comes to me with a halakhic question, says to me if such-and-such. Someone comes to me with a chicken, say, okay? He says to me that the chicken has such-and-such a defect; the question is whether it is non-kosher or not. I tell him: In such a case it is not non-kosher. Okay? Later it turns out that he lied to me entirely; he did not correctly describe what was in the chicken. So what happened? His problem, what does that have to do with me? Meaning, I answered him a halakhic question: you presented the data to me, under those data Jewish law says such-and-such. If the data are not correct, then he lied, no problem, that has nothing to do with me. In a religious court I really can’t do that. In a religious court I have to hear him, because the ruling I issue in the end is a ruling on the case, not a ruling on a hypothetical situation. And in this case you have to clarify the details very carefully and see what the law is with regard to those details. Okay? But what I told him was a halakhic ruling. What I told him was basically Yoreh De’ah, not Choshen Mishpat in principle, because I wasn’t sitting as a judge; I was sitting as a rabbi giving instruction. Yes, same thing, yes, same thing. I had a similar story of—of what?

[Speaker C] Yoreh De’ah, Yoreh De’ah, not Choshen Mishpat.

[Rabbi Michael Abraham] Yes, exactly. Choshen Mishpat is to determine a judgment, to say who is obligated and who is not obligated. What? That’s how we say it, Yoreh De’ah—“it teaches knowledge.” There’s a similar case I had once: I sat, more than once, on a panel for annulling kiddushin. And it was a pair of reckless kids, 18-year-olds who got married. What? Yes. And he didn’t—he didn’t even get to the hotel on the wedding night; he never got to the hotel. After a few days they saw that he had already flown that very evening to the United States, and was living with another woman in some house there, I don’t know where, in the United States. Okay, something completely stupid, a youthful prank by two idiots. They threw a party, everything, hall, parents, gifts, the whole story. And he never meant any of it seriously at all. He also ran off with the gifts, by the way. So it was bizarre, a bizarre case. Never mind. In any case, I argued that the situation—the Rabbinate dragged this out for years, of course, and they begged him to give her a get, and they bribed him; in the end they bribed him.

[Speaker C] There’s an application here of “in a place where they first betroth and then send gifts.” So here, if he already took the gifts…

[Rabbi Michael Abraham] No, gifts are a different discussion, gifts are a different discussion.

[Speaker C] No, it’s a question whether the gifts are the kiddushin itself or on account of kiddushin. No, no, here there isn’t…

[Rabbi Michael Abraham] A question because there was…

[Speaker C] No, but I’m saying the opposite: because he took the gifts, then yes, but…

[Rabbi Michael Abraham] It doesn’t matter whether it’s a place where they first betroth and then send gifts or not; it won’t depend on that here at all. There the discussion is that we don’t have witnesses to the kiddushin, and then the question is whether the gifts testify that there was kiddushin. But here it’s irrelevant, I have witnesses to the kiddushin, I don’t need the gifts for that.

[Speaker C] No, I’m saying since this kiddushin wasn’t serious, you could say if he gave gifts and left them with the woman, then that’s at least a sign from his side that he meant it seriously. Ah, that’s what I’m saying—those he took, so there’s no sign here either. Yes, fine, okay.

[Rabbi Michael Abraham] In any case, I said that the kiddushin had to be annulled, that a get wasn’t needed at all. Because her consent was on the understanding that she would get partnership. Meaning, “better to dwell as two”—the point is that a woman wants companionship, and therefore she is willing to pay prices, even if the man is not, I don’t know, not this and not that, but she wants companionship. Here she didn’t get the companionship at all. If she didn’t get the companionship at all, then her original consent was mistaken consent. Okay? And therefore the kiddushin is void, nonexistent, never existed at all, and a get is not needed. Exactly. That’s why I’m bringing this example, because the claim here is—afterward I discussed this here with Rabbi Rafi Stern, who of course didn’t agree, but in our discussion it really came up that he was entirely right that what we did there was not a judicial act at all, simply an instruction of prohibition or permission, basically. We told her: Look, just so you know, you simply are not his wife. It’s not that I annulled kiddushin there; rather, I revealed to her a state of affairs that already existed. I did not create that state of affairs; the state of affairs is that she is not married. I merely told her that she is not married. That’s all. So this is not a legal act, not the act of a judge. It’s the act of a halakhic instructor. As a halakhic instructor, you can come ask me: tell me, is this kind of kiddushin valid kiddushin? No, it isn’t kiddushin. That’s it. I didn’t annul anything here; you don’t need a religious court for that at all. Okay? So in principle this really belongs to Yoreh De’ah, not to Even HaEzer and not to Choshen Mishpat. Yoreh De’ah is instruction in prohibition and permission, even though it obviously touches on personal status and everything. Okay? So that’s just to illustrate the point. Now I want to show you the implication of this matter. Once we understand that this is Choshen Mishpat, that this is the meaning of Choshen Mishpat, now look at the implication of the matter. I want to present to you two sides of a coin that seem, on the face of it, contradictory. I’ll state both sides first and then I’ll elaborate a bit more. One side is that in monetary law—that’s really our topic—in monetary law you can make conditions contrary to what is written in the Torah. That is Rabbi Yehuda’s opinion, and we rule that way in Jewish law as well. You can make conditions contrary to what is written in the Torah. Now nobody would ever imagine that you can make conditions contrary to what is written in the Torah regarding pork, right? You can’t make conditions contrary to what is written in the Torah regarding a prohibition. I stipulate, I don’t know what, that it will be permitted for me to eat pork. Stipulate all you want; it’s forbidden to eat pork. Okay? So why is it possible in monetary matters? And the Mishnah in Bava Metzia on page 94 says that an unpaid bailee may stipulate to be like a paid bailee and vice versa. Meaning, you can stipulate concerning monetary laws completely freely. So what is all this that we study about the laws of an unpaid bailee and a paid bailee and make pilpulim? In practice, you can make whatever contract you want: a paid bailee who is exempt from theft and loss and liable for theft—do whatever you want. More than that, the medieval authorities (Rishonim) and later authorities (Acharonim) write that there is no point at all in not stipulating. It’s not that after the fact, if you stipulated, it takes effect. No—you may stipulate from the outset, there is absolutely no problem. There is no requirement that you specifically use the Torah’s laws of a paid bailee. Agree between yourselves—whatever you agree to, do whatever you want. There is freedom of contract, what’s called freedom of contracts. Okay? Make whatever contract you want. Jewish law only deals with the question of what the default is. Meaning, if you didn’t stipulate, then what is the law? Simple. Seemingly that too is not all that interesting. So let me ask more than that. Why is learning the laws of an unpaid bailee and a paid bailee Torah at all? In practice, what really binds is whatever the parties stipulate. More than that—even if we don’t stipulate, what about dina de-malkhuta dina, or communal enactments, or local commercial custom? All these operate in monetary law. They do not operate in prohibition; there is no local custom to eat pork. But there is local custom that an unpaid bailee is liable for theft and loss, or that a paid bailee is exempt from theft and loss. No problem—if that’s the local custom, or that’s the law, the law here created local custom or dina de-malkhuta, doesn’t matter, in monetary law it works. So I’m just asking: then why do I recite the Torah blessing when I study Bava Metzia, and should I also recite the Torah blessing when I study here in the law faculty? That’s what really determines the law. So why, why, why are we dealing with the laws of an unpaid bailee at all? Why is that considered Torah, while what we study in the law faculty is not Torah? There’s something very, very strange in this whole story. Essentially all of Choshen Mishpat is recommendations. Do whatever you want. If you stipulate, no problem; stipulate that you are not liable for damages, then you won’t be liable for damages. You can do whatever you want. Local custom, all fine. Regarding Yoreh De’ah, of course, nobody would even imagine such a thing. There is no such thing as stipulating against Yoreh De’ah, right? About a prohibition, that it won’t prohibit—that’s what we saw in Rabbi Akiva Eiger on pe’ah, yes, where one stipulates that there should be no forgotten sheaf. Let him stipulate till tomorrow. So there is one side of the coin: in monetary law, or Choshen Mishpat, this is the most elastic domain in Jewish law. You can stipulate against it, local custom determines it, dina de-malkhuta determines it, communal enactments determine it, all fine—it is as flexible and elastic as you want. All the rest of Jewish law—what do you mean? There is Jewish law, and “there is no counsel and no wisdom against God.” Okay? Whatever Jewish law determines is what it determines. You cannot stipulate anything. So monetary law, or Choshen Mishpat, is the most flexible field there is, right? That’s one side of the coin. The second side of the coin: there is a Talmudic passage in Bava Kamma on 60b in the chapter HaKones. The Talmud asks—there’s some story with King David and the mighty men whom he sent to bring water from the well of Bethlehem. And the Talmud expounds the verses there and says that in fact he sent them to ask a halakhic question. And what was the halakhic question? May a person save himself at the expense of another person’s property, or not? May a person save himself at the expense of another person’s property, or not? Why? Because the Philistines were hiding there behind a stack of barley, wheat, whatever. Now the question was whether you are allowed to burn the stack in order to save yourself, because you are in a war with the Philistines, but what does the owner of the stack have to do with this? Why should you save yourself using your fellow’s property? That’s the question the Talmud asks. And the answer the Sanhedrin sent to King David was that a person may not save himself at the expense of another person’s property. You are a king, and “a king may breach a fence to make himself a road”—a king is allowed. But a private individual is forbidden. Or in other words: die, and don’t burn the other person’s stack. Only if you are a king is it allowed; but a private individual in such a situation has to die and not damage the other person, not damage the other person’s property.

[Speaker C] And a pursuer? If it’s a case of a pursuer, then he does save himself at the expense of another person’s property?

[Rabbi Michael Abraham] No, the Talmud says there that a person may not save himself at the expense of another person’s property. And in the case of a pursuer, is it possible? Where is it written that it is?

[Speaker C] In the case of a pursuer it says he can break vessels?

[Rabbi Michael Abraham] No, no, it doesn’t say at all that he can break vessels. What it says is that when the pursuer himself broke vessels, he is exempt from paying for them because “he incurs the greater punishment,” meaning he is liable to death so he is exempt regarding the vessels. It doesn’t say? No, it doesn’t say he may break vessels. Wait, I’ll get to that in a moment. But that’s what it says there in the Talmud. Now, what follows? Taken simply, the Talmud sounds very illogical, unreasonable. Why? As Tosafot and the Rashba and others ask there. What do you mean? There are three severe transgressions for which one must be killed rather than transgress. We have not found that robbery is one of the severe transgressions, or that causing damage is one of the severe transgressions. Causing damage—is there even a transgression there? That’s the opening discussion in Bava Kamma in the yeshivot: is there actually a transgression in causing damage? What the Torah says is that if you caused damage, you have to pay. Where does it say that it is forbidden to cause damage? That there is a transgression? So that’s a question; never mind, they discuss it separately. But now to say that this transgression is not only a transgression but one for which you must be killed rather than transgress? Meaning, you have to die in order not to damage the other person? That can’t be. Therefore Tosafot and the Rashba say there that when the Talmud says that a person may not save himself at the expense of another person’s property, the meaning is that if he did it, he must pay—not that he is forbidden to do it. Rather, if he did it, he has to pay.

[Speaker C] So then it’s permitted. Certainly in the case of a pursuer he may save himself at the expense of another person’s property, he just has to pay?

[Rabbi Michael Abraham] Wait. That’s the conclusion, but it isn’t written anywhere. That’s what we’re discussing now. When it says that a person may not save himself at the expense of another person’s property, it doesn’t mean forbidden; it means that when he does it, he’ll have to pay. Meaning, if it had been permitted to save himself at the expense of another person’s property, then he could do it and wouldn’t even have to pay. What? He should come and pay? Yes. David, because he is king, can declare property ownerless for his needs. So the whole discussion is really about the obligation to pay. That’s how Tosafot and the Rashba and others explain it. You have to understand that this explanation is a somewhat problematic explanation of the Talmud. Why? First, it’s not the plain meaning of the Talmud. The Talmud says: is it permitted or forbidden to save oneself at the expense of another person’s property? It doesn’t say that the discussion is about payment. Fine, so it’s a forced reading because there’s no choice, because otherwise it makes no sense. But then you have to understand what the position would be that a person may save himself at the expense of another person’s property—meaning that if he did it he would be exempt from payment? Why should he be exempt from payment? The person used my property to save himself, fine, he’s allowed because it’s a matter of saving life—but why should I bear the cost? Let him pay me. So there’s also a difficulty in the explanation of the Rashba and Tosafot there. It’s not a clean explanation, free of problems. But that’s what they say. Why do they resort to this forced reading? Because of the major difficulty they raise, that robbery is not one of the three severe transgressions. And it cannot be that what the Talmud means there is literally that you are required to die rather than damage another person in order to save yourself. But the last Rashi there on 61b writes that it is literal: a person may not save himself at the expense of another person’s property. He has to die. Be killed rather than transgress regarding robbery. I once heard in the name of Rabbi Lichtenstein—I don’t know if this is just hearsay—that he said this Rashi is a copyist’s error, because it can’t be, it’s absurd. Fine, there is no indication that it’s a copyist’s error. All the medieval authorities (Rishonim) and later authorities (Acharonim) discuss it; nobody says it’s a copyist’s error. But yes, it’s difficult. This Rashi is difficult. How can that be? There are only three severe transgressions. Where did we find that robbery is also such a severe transgression? By the way, in the responsa Binyan Tzion by the Arukh LaNer, he writes there—he has a whole series of responsa, I think from 186 to somewhere in the 190s, a series of six or seven responsa on this subject. And he expands it even further. He says that there is “be killed rather than transgress” for all commandments between one person and another. Not only robbery. Now it is quite clear that he does not mean that there is “be killed rather than transgress” with regard to giving charity. Meaning, if I have to give a poor person one hundred shekels of charity and someone threatens me with a gun not to give it, I have to give it and die? “Be killed rather than transgress”? He doesn’t mean that. What does he mean? He discusses there, for example, there is a Tosafot in Sotah, I think, where the Talmud says that it is better for a person to throw himself into a fiery furnace than to whiten his fellow’s face in public. Tosafot asks: where did we ever find that humiliation is one of the three severe transgressions? That one must be killed rather than humiliate his fellow? So what? Yes, so on the simple reading Tosafot understands that this is a halakhic instruction. I myself would really say that it is just an aggadic statement. But Tosafot understands it as a halakhic statement. And then he says: fine, it is like killing him, humiliating him, because the blood leaves the face—that is what is written there in the Talmud in that same context—the blood leaves the face, so it is like killing. And therefore it is an accessory of murder or something like that, and so one must be killed rather than transgress. That’s what Tosafot claims. And of course that is a very dubious answer. So the Arukh LaNer offers another explanation. He says, based on this Rashi, that since harming your fellow, like robbery, is “be killed rather than transgress,” then humiliation too is harming your fellow and so it is “be killed rather than transgress.” There is “be killed rather than transgress” for commandments between one person and another—for harming another person. Now what is the idea behind that? It still doesn’t solve the problem. There are three severe transgressions, so where did we ever find that commandments between one person and another are also severe enough for “be killed rather than transgress” to apply? So I want to make the following claim. Do you know Rabbi Shimon Shkop on the Torah of jurisprudence? Rabbi Shimon Shkop says—he brings the Maharit’s question at the beginning of Sha’ar 5—why is the burden of proof on the one who seeks to extract money from another? After all, you have a doubt about the prohibition of robbery, and with a doubt about the prohibition of robbery you should be stringent. So take the money out of your own possession. Why are you allowed to keep the money if you are in doubt about the prohibition of robbery? Say he claims “perhaps.” We are talking about a case where he claims “perhaps,” so he doesn’t know. If he knows, then he says, I know, I’m not a robber. But if he says “perhaps,” then he doesn’t know. So if he doesn’t know, why can he keep the money in his possession? It’s doubtful robbery. Rabbi Shimon Shkop says—I’m shortening this—that you can keep it because the prohibition of robbery is a prohibition built on top of the laws of ownership. First we have to determine the laws of ownership, what belongs to whom. That determination is a legal determination, not a determination of halakhah. It precedes halakhah. The laws of ownership—for example, with almost all the subject of acquisitions, there are practically no verses from which you can derive laws of acquisition. These are things that come from reasoning, from enactments of the Sages; they don’t come from verses. That means—it’s not enactments of the Sages, but determinations of the Sages, and they have Torah-level status—but it is a determination that has no verse, because the laws of jurisprudence are determined even before the Torah arrives. And afterward, when the Torah comes, it says: once we have determined under the laws of ownership that this specific property is yours, then if I take it from you there is a prohibition: “You shall not rob.” But the laws of ownership themselves, the determination that this is yours and not mine—that is a determination of the Torah of jurisprudence. That is an assumption that the prohibition of “You shall not rob” encounters already prepared; it does not itself determine it. Once that exists, the prohibition of “You shall not rob” says that you may not harm another person’s property. But who determines what counts as another person’s property and what doesn’t? That is determined by the laws of jurisprudence, the Torah of jurisprudence, or in other words, by the legal determination of society. And the Torah anchors that in the prohibition “You shall not rob.” Meaning, if you harm property that is not yours according to the laws of jurisprudence, there is a prohibition of “You shall not rob.” Rabbi Shimon Shkop says: if that is so, then when someone claims against me and has no proof, then from a legal standpoint the money is mine, because there is a legal rule that the burden of proof lies on the one who seeks to extract money from another. Once legally this money is mine, then my holding it no longer involves the prohibition of robbery. Meaning, the prohibition of robbery applies only to a situation where I hold money that is not mine on the legal level. But if legally it is mine, then there will also be no prohibition of robbery. The prohibition of robbery does not operate detached from the question of ownership, from the laws of jurisprudence. Once jurisprudence says that I may hold it, then halakhah also permits me to hold it, because all that the prohibition of “You shall not rob” came to do is forbid me to hold property that legally is not mine—it is forbidden for me to hold it.

[Speaker C] Who says that it’s his?

[Rabbi Michael Abraham] The laws of jurisprudence, yes. Part of the laws of jurisprudence is that the burden of proof is on the one who seeks to extract money from another. Again, the laws of jurisprudence basically say what belongs to whom. The laws of ownership are determined according to the Torah of jurisprudence. Now, the burden of proof on the one who seeks to extract money from another is part of the Torah of jurisprudence. Yes, every legal system, exactly, all of this is the Torah of jurisprudence. Once we determined this, then on the legal level, since you brought no proof, it is mine, legally. Yes, but it could still be that really it isn’t yours, and if really it isn’t yours then you are violating the prohibition of robbery—why aren’t you concerned about the prohibition of robbery? Right, that was the question of the Mahari Basan. Answer: there is no such thing as “really.” What is mine or not mine is determined by the system of jurisprudence. And if the system of jurisprudence said that I may hold this thing, that means it is mine, and therefore holding it will also not be a prohibition of robbery, because the prohibition of robbery comes to anchor the legal determination of what is mine and what is not. So if that is the legal determination, the prohibition of robbery cannot change it, and also does not want to change it. There’s something here that comes…

[Speaker C] From there it’s not about certainty in the current possessor, yes,

[Rabbi Michael Abraham] In the current possessor, but…

[Speaker C] There’s a difference if a person says, “You owe me a maneh, and I don’t know whether I…”

[Rabbi Michael Abraham] No, that’s certainty strong and certainty weak, perhaps strong and perhaps weak.

[Speaker C] I don’t know if I really took it, I don’t know if I repaid it.

[Rabbi Michael Abraham] Fine, never mind, it’s not important here, but…

[Speaker C] Those are rules too.

[Rabbi Michael Abraham] Fine, there are rules, but it isn’t important. All of that is legal rules.

[Speaker C] Those are legal rules?

[Rabbi Michael Abraham] Yes, all of it. What? Does it not override a Torah-level law? There is no Torah-level law. The Torah-level law comes to anchor the legal situation.

[Speaker B] How is “the burden of proof is on the one who seeks to extract money” Torah-level?

[Rabbi Michael Abraham] The Talmud itself asks: from where do we derive that the burden of proof is on the one who seeks to extract money? And then it says: why do I need a verse? It is reasoning—one who has pain goes to the physician. So that reasoning descends to the Torah level as well,

[Speaker B] Right, exactly.

[Rabbi Michael Abraham] Meaning, “You shall not rob” is actually built on the legal system. Once the legal system determined that this money is not mine, if I hold it then I have also violated the halakhic prohibition of “You shall not rob,” besides being a legal robber.

[Speaker C] It’s a level above, exactly. The first level is basically the legal rules. Exactly.

[Rabbi Michael Abraham] Now once on the first level this money is mine, then you can’t tell me that on the second level I violated “You shall not rob.” The second level is determined by the first level.

[Speaker C] And reasoning, and “how much more so,” and all those things, all that is…

[Rabbi Michael Abraham] Legal, right. They really also have no source. That is Rabbi Shimon Shkop’s claim. Now what does this actually mean? It basically means—yes, usually people, and this is what I was speaking about, people. Is “the mouth that prohibited is the mouth that permitted” also a legal rule? Yes, obviously. About “the mouth that prohibited,” the Talmud searches and brings a source, but…

[Speaker C] Also…

[Rabbi Michael Abraham] There too it says that it is reasoning: the mouth that prohibited is the mouth that permitted. The simple understanding of Rabbi Shimon Shkop’s words—I once had an argument about this with Rabbi Meir Berkowitz. He claimed that what Rabbi Shimon Shkop means is that the legal system determines what belongs to whom—the laws of ownership. But before “You shall not rob” in halakhah, in the Torah, it was permitted for me to take it even though it was yours. The prohibition against taking something that is not mine is entirely halakhic—“You shall not rob.” And I argued that there is a legal prohibition. No, even the Noahide laws are halakhah. I’m talking now about something prior to everything, pre-halakhic.

[Speaker C] Reasoning in the laws of robbery. Yes.

[Rabbi Michael Abraham] So I argued that in the laws of jurisprudence there is also a prohibition, not only a determination of what belongs to whom. Meaning, it is also forbidden for me to take from you legally, and the Torah adds another level of halakhic prohibition beyond the legal prohibition. But there is also a legal prohibition. My proof—two proofs—from Rabbi Shimon Shkop’s words. What? Legal—legal prohibition? Society. Yes. Talmud? Yes. Okay. That is Rabbi Shimon Shkop’s claim. He has two proofs. One proof is that Rabbi Shimon Shkop claims that even according to the opinion that robbery of a gentile is not forbidden at the Torah level, it is still forbidden at the Torah level. It would not be forbidden by “You shall not rob,” but there would be a legal prohibition. What do we see? That there is a legal prohibition, not only a legal determination of what belongs to whom. Rather, if I take something that belongs to someone else, then I have transgressed a prohibition even before “You shall not rob.” And in the case of a gentile, according to the views that there is no “You shall not rob” there, that prohibition will still exist. So you see that he is speaking about a prohibition too, not only about a determination of what belongs to whom. And there is an even stronger proof. Rabbi Shimon himself asks what you asked, what Noam asked earlier. Why, if let’s say there is a legal determination that this money belongs to you, and now if I take it from you there is a legal prohibition against taking it, why should I obey that if the Torah didn’t establish it, if the Torah didn’t command me? “You shall not rob” is commanded, but the legal prohibition that exists without “You shall not rob”—where does that prohibition come from, what gives it force? If the Torah did not command it, why should I listen to it? So he gives an interesting answer. He says: why should I listen to something that the Torah did command? Because reasoning says that what the Torah commands should be obeyed, right? Reasoning also says that what the legal system says should be obeyed. The same mouth that prohibited also prohibited that.

[Speaker C] Shouldn’t one obey the legal system? No, human beings—these are conventional human concepts, ways of conducting life. Right. And reasoning…

[Rabbi Michael Abraham] Says that if you belong to a society, and society established some rule, you have to abide by it. That is reasoning.

[Speaker C] These are…

[Rabbi Michael Abraham] Human norms, binding norms, not only…

[Speaker C] Norms that determine the definitions, but they also contain sanctions.

[Rabbi Michael Abraham] Right. Now, and what do we see from this, incidentally, in Rabbi Shimon Shkop’s own position? That he himself understood that there is also a legal prohibition against robbing; it is not only an ownership determination. Because if it were only an ownership determination, then there would be no point in asking why I should obey it. I really wouldn’t need to obey it; I could take from you. He assumes there is also an obligation to obey—meaning it is forbidden for me to take it from you even apart from “You shall not rob,” even before “You shall not rob.” And about that he asks why it should be forbidden. So from his question it is clear that he understands that it is also forbidden to take, not only that it belongs to you on the level of definition. Right? Why do I say that? Rabbi Shimon asks why I should obey this prohibition. That means there is a prohibition. If it were only a determination that it is yours, but the prohibition comes only from “You shall not rob,” then what is the question? I obey “You shall not rob.” Beyond that I really wouldn’t need to obey. He understands that there is a dimension of obedience on the legal level too, not only in “You shall not rob.” Why? Apparently because it is forbidden for me to take the thing from you, not only because it belongs to you, not merely as a definition. Right? That’s what emerges from that question. No, no—the Torah recognizes it de facto. It says—the Torah expects us to obey legal matters too. But there is no command in the Torah, it’s not… The Holy One, let’s put it this way, not the Torah. The Holy One expects us to obey it. Besides that, there is the system of the Torah—or even on top of that—the system of the Torah. There can be a legal prohibition without the prohibition of “You shall not rob,” for example with a gentile. There is a legal prohibition against robbing him, even though there is no “You shall not rob” according to the views of the medieval authorities (Rishonim) that robbing a gentile is permitted by Torah law, so there is no “You shall not rob” for robbing a gentile, but legally it is forbidden to take. But the reverse cannot be. There will not be “You shall not rob” where there is no legal counterpart. And therefore, regarding “the burden of proof is on the one who seeks to extract money,” Rabbi Shimon Shkop says: if on the legal level you are not a robber, then on the halakhic level you are not a robber either. It cannot be that you are a halakhic robber without being a legal robber, but the reverse can happen.

[Speaker C] But what is the difference from the concepts that exist in the seven Noahide commandments, where this also applies? Because conceptually, why is there then a category of seven commandments?

[Rabbi Michael Abraham] And laws—when is the gentile obligated?

[Speaker C] And at the stage of a gentile, what is his obligation? What is the source of that obligation?

[Rabbi Michael Abraham] The Rosh writes, and the Hatam Sofer as well, that for a gentile no fixed measures were stated. The age of majority is one of those fixed measures. And measures, interpositions, and partitions are a law given to Moses at Sinai. For a gentile there are no fixed measures. Meaning, the binding age is from when he understands.

[Speaker C] Understanding. Yes, but I know the Hatam Sofer, yes, also as it appears there in Kovetz Shiurim, maybe yes, whether this is in the descendants of Noah, whether it’s a gentile plus all those things. But what do we learn from that? That basically the creation of this obligation has its source in human agreement, in reasoning. Exactly.

[Rabbi Michael Abraham] There’s also the Sifrei, where he develops four points, that this was something that already existed there even though there still wasn’t a commandment of the Torah, because it’s rabbinic. Yes, yes, right. “And he shall uncover the woman’s head” in the case of the suspected adulteress—we learn from here that women used to cover their heads in the past, and therefore apparently there was a standard that one ought to cover one’s head. Jewish law is built on top of existing human norms. Those are words—it obligates you halakhically, but what exactly to call that is another question. I didn’t understand. Clear, but Rashi has two explanations there. One of the explanations is that from “and he shall uncover the woman’s head,” by implication we see that it had been covered up. So what does that mean? Not that the Torah commands a prohibition, but that we see they practiced it as a prohibition; the fact is they practiced it as a prohibition. No, now the verse comes and from the verse we see—from the verse we see—that’s Rashi’s first explanation; he has two explanations. No, and also that it is proper to cover, as they were covered. That too you see from the verse. But first of all you see that they were covered; that’s a standard established before the Torah. What? So that’s the big question there. The question is how exactly to relate to this inference of the Talmud—whether this is a Torah-level law. Nobody counts this as one of the commandments. Hm? Yes, right, I also wrote a critique about that.

[Speaker E] In any case, for our purposes,

[Rabbi Michael Abraham] an expectation of the Holy One, blessed be He, that we obey it—not a command of God. It’s a human agreement, and the Holy One, blessed be He, expects us to obey it, meaning to act in accordance with it. Now what does that really mean? It means that, say, let’s now go back to theft, right? And what did we say? That Tosafot and the Rashba asked against Rashi: how can it be that theft is one of the three most severe transgressions, such that a person may not save himself with someone else’s money? The answer is: it is not one of the three most severe transgressions. The prohibition of “do not steal” is overridden by saving a life. But leave aside the prohibition of “do not steal”—that money is his; you cannot take it, not because of the prohibition of “do not steal.” You can’t take that money because it is his. Independently. The prohibition of “do not steal” is overridden. But why can’t you take it? Because under monetary law, it is his. He owes you nothing. The fact that you are in a life-threatening situation changes nothing with respect to his rights. What do your circumstances have to do with his rights? It changes your obligations. You are not bound by obligations when you are under threat to life, but that changes nothing about his rights. And if my prohibition against stealing from him or damaging him belongs to monetary law and not ritual law, then that means it is not primarily an obligation on me; it begins with his right to his property, and therefore I am forbidden to violate it. But your life-threatening situation does not override his right. What do his rights have to do with my life-threatening situation? Since I am forbidden to take it because he has rights, it follows that I am forbidden to infringe them, and therefore I must die and may not touch it. Not because of “do not steal”; there is no “do not steal” here—“do not steal” is overridden. No, no, you’re talking about a different claim. You’re asking, fine, why wouldn’t he agree? He ought to waive it. Fine—he didn’t waive it, he’s wicked, the Holy One, blessed be He, will settle accounts with him—but it’s his, he makes the decisions. And I cannot take his thing without his consent just because I’m in danger of death. My danger of death removes my obligations, not his rights. No, the opposite: “do not steal” is overridden, because it is not one of the three most severe transgressions. Tosafot and the Rashba are right. Rashi says: correct, “do not steal” is overridden, but the reason I may not take it from him is not because of “do not steal,” but because it is his, he has rights. His rights do not evaporate because I am in danger of death. My being in danger of death can dissolve obligations imposed on me, but not his rights. What connection is there between my danger of death and the rights he has over his property? Think about it: suppose I’m critically ill and I need a kidney. Can I grab you, tie you up, remove your kidney, and run to the hospital so they can put it into me? It’s saving a life. Why not? Saving a life. What’s the problem?

[Speaker C] Why not?

[Rabbi Michael Abraham] You won’t die. I’ll do it hygienically, everything will be fine, you won’t die. This is theft because of saving a life—what’s the problem?

[Speaker C] But a person may save himself with someone else’s money.

[Rabbi Michael Abraham] What difference does that make? Is injuring someone also one of the three most severe transgressions? Injuring someone? That’s injury. Yes. Is it one of the three most severe transgressions? No. No?

[Speaker C] So, then—

[Rabbi Michael Abraham] So why not do it? It is overridden in the face of saving my life. Why not? Because I cannot violate your rights when I am in danger of death. That’s an enormous difference between—never mind, distinctions… make whatever distinctions you want. It’s irrelevant. There’s a difference, so what? At the end of the day there is a prohibition here that is not one of the three severe ones, and you yourself say it’s not one of the three severe ones. Correct. So then why am I forbidden to violate it? I’m in danger of death. I’m saying you are allowed to violate it.

[Speaker C] So—

[Rabbi Michael Abraham] I can take your kidney? Not regarding the—

[Speaker C] Kidney. Why not?

[Rabbi Michael Abraham] There is a prohibition against injuring someone; it is not one of the three most severe transgressions. Why am I forbidden to violate it? I’m in danger of death. Because the person—

[Speaker C] is master over his body, and his will is to be—

[Rabbi Michael Abraham] sovereign over himself—that’s not words, that’s not words.

[Speaker C] Words, words, words… words. That’s words.

[Rabbi Michael Abraham] Tell me the halakhic rule. There are three severe transgressions. The transgression of injuring someone is not one of them.

[Speaker C] Look at it this way.

[Rabbi Michael Abraham] Why? Why? So how should we look at it? So how should we look at it? So how should we look at it? You’re just saying words. How should we look at it? There is a prohibition of injuring someone, and it is not one of the three most severe transgressions. That’s all.

[Speaker C] I tried to find it, really…

[Rabbi Michael Abraham] So I found it. Here, now I’m showing you. I found it. And the answer is that anything that is your right, and from that right my obligation is constituted, is not overridden by my life-threatening situation. You have a right to your kidney; I can’t make decisions about your kidneys. Not because of the prohibition of injuring. The prohibition of injuring is overridden. But that kidney is yours. So I made calculations—so what if I made calculations? The calculations about your kidney are made only by you, not by me. And the same is true of your money. That’s what Rashi says. Same thing. Rashi says that since—and Binyan Tzion says even more, also regarding humiliation, everything—all things whose foundation lies in your rights. So even if my obligation is overridden because I am in danger of death, that changes nothing, because your right remains fully in place. My danger of death does not dissolve your right. That’s it, that is—

[Speaker C] between rights and obligations, and then only if he has a right corresponding to the obligation can I do… right. Exactly. Now think: with obligations there is…

[Rabbi Michael Abraham] It doesn’t matter, but it’s not an obligation imposed on him but on me. What does that have to do with it? His right—his property—only he decides. You can’t make calculations about his property. I’ll give an example that will sharpen this more. I already want to finish. I’ll give an example that will sharpen this more. Once we were sitting around a table with a clownish friend of mine in Bnei Brak, and someone there was reading from some book. He says to him: “Wow, I’ve been looking for that book for years.” The other says to him: “Look, I have two options. Either take the book from you and violate ‘do not steal,’ or leave the book with you and violate ‘do not covet,’ because I covet it. Since either way I’m violating a prohibition, then at least I’ll take the book.” Now of course that’s a mistake in understanding the parameters of “do not covet,” and he knew that—he’s a Torah scholar. But what is fundamentally wrong with that argument, even if he weren’t mistaken about the parameters of “do not covet”? That your calculations are not made on my property. Your calculation may be correct—not because it’s incorrect. It is correct. But regarding my property, regarding my rights, only I decide. And even if I’m not acting properly, that’s my accounting with the Holy One, blessed be He. You cannot enter my territory and make calculations about my property. Okay? So it’s the same with a kidney, and the same with money, and the same with anything. That’s what Rashi says. At least that is Rashi’s approach.

[Speaker C] And what I wanted to add there, the category of a pursuer and all that, they found that as Jewish law…

[Rabbi Michael Abraham] But Rashi says, as it says there, the tanna’im—

[Speaker C] that Joshua made a condition regarding the land, that you can and this… those are stipulations. Those are stipulations!

[Rabbi Michael Abraham] I’m speaking now about the core law. Yes, I’m only giving an example from Rashi,

[Speaker C] because otherwise you leave no one able to live, there are other things like this…

[Rabbi Michael Abraham] No! “You leave no one able to live” is not correct. People would still remain alive anyway, but never mind. Leave it, I’m not getting into rabbinic questions now. I’m talking now about the core law. According to the core law, Rashi says that you cannot violate another person’s rights even if you are right. Halakhically you are right—there is no obligation on you, saving a life has overridden the obligation. But you can be right regarding your own property, not regarding my property. That’s all. Now, I am wicked if I don’t give the property to save your life. The Holy One, blessed be He, will settle accounts with me. But as long as I don’t agree, you cannot take it. No? No. That’s what Rashi says. A priori or after the fact? No—after the fact, a priori, everything—you cannot take it. You have to die. That’s what Rashi says. Yes.

[Speaker C] It’s not logical like that…

[Rabbi Michael Abraham] What do you mean, logical? That’s the law. If the other person does not agree, you may not take it. I’m saying that most of the medieval authorities (Rishonim) disagree with Rashi; we’re talking within Rashi’s approach.

[Speaker C] So according to Rashi, the Rabbi says that because this is perhaps not because it’s a mistake? Who said it’s a mistake?

[Rabbi Michael Abraham] But it’s written in Rashi. He also said “another version”—so what if he said it? It’s written in Rashi, everyone discusses it, it’s Rashi’s approach. By the way, I have proof for this from a passage in tractate Ketubot. There is clear proof for this Rashi from a passage in Ketubot.

[Speaker C] There are those who said there’s a mistake there in Beruriah, and they say that what is written there as Rashi—Rashi didn’t write that.

[Rabbi Michael Abraham] Fine, it could be that there are places where Rashi was copied incorrectly; here that’s not the case. All the medieval authorities and the later authorities discuss this—it’s not, there’s no scribal error here, it’s Rashi’s approach. And Binyan Tzion writes this explicitly. It’s Binyan Tzion’s approach, you know what, not Rashi. He writes it explicitly. Let’s talk about that, yes. He says more: he says it about all interpersonal transgressions. But again, interpersonal transgressions whose basis is the other person’s right—that’s the point. Fine, never mind, I’m saying there is such an approach. I’ll say even more than that: I have a passage in Ketubot that is clear proof for this approach. An explicit Talmudic passage, and I won’t get into that now, I don’t have time for it. What I want to say is just this. Apparently there is here a tension between two perspectives that seem opposite. On the one hand, monetary law is the most flexible and elastic thing in Jewish law. You can stipulate around it, custom, the law of the kingdom is law, everything—you can do whatever you want with monetary law. On the other hand, monetary law is the most rigid and severe thing in the Torah. Be killed rather than violate it, and you may not infringe monetary law. How does that fit together? Is monetary law the most rigid thing or the most flexible thing? There are two aspects here that look opposite. The answer is very simple, and it connects to what I said earlier. It’s not monetary law; it’s the law of rights. And it works like this. When the laws of civil law are defined as your rights, from which my obligation follows—okay?—if we stipulate, or if there is accepted social custom, which is like a stipulation, then you waive your rights. A stipulation has to be with the consent of both parties. You waive your rights. So what’s the problem? You are allowed to waive your rights. Correct? But if you did not waive your rights, then I cannot infringe them even if I am in danger of death. It’s not a question of severity versus leniency. The question is: who is the owner of those rights? You are the owner. So the lenient side is that if you waive them, there is no problem at all. It’s not like pork. With pork you can’t waive anything; there is no one to waive it. It is forbidden to eat pork. But here the Torah gave you rights. You don’t want the rights, you want to waive them—fine, waive them. Therefore this is the most flexible area there is. But if you do not waive them, the only person who can infringe your rights is you alone. I cannot make any calculation, however correct it may be and however grave it may be, in order to infringe your rights. So these are two sides of the same coin; there is no contradiction. As long as we understand that the idea of monetary law is that it is the law of rights. And when the Torah said that to a paid guardian, the one who deposited something with a paid guardian is entitled to compensation for theft and loss, it did not say that one must pay him for theft and loss. It said that he is entitled to it for theft and loss. Because if I want not to take it, I waive what I am entitled to. There is no problem at all; the Torah has no problem with my waiving it; I’m allowed to give you gifts. Therefore one can stipulate regarding monetary matters. One can stipulate regarding monetary matters because the conception is that a monetary matter is a right the Torah gives you; it is not an obligation on him to pay me. If it were an obligation on him to pay me, you couldn’t stipulate anything. He would have to do what the Torah said. What? Again? Yes. Certainly, I have a right over a person, over his body. What do you mean? Fine, “who says your blood is redder?” What does that have to do with it?

[Speaker D] Right, it could be that both sides are here too: you’re also forbidden to murder him from the standpoint of the transgression. It’s—

[Rabbi Michael Abraham] It’s not two sides, it’s the same side, that’s exactly it. You don’t need to get to the severity of the transgression at all—that’s what is written here. That’s what I’m saying. Because in murder, saving my life is set aside because of the severity of the transgression. But even if murder were not such a severe transgression, I still could not murder him, because I can’t even steal from him, or take a kidney from him, so certainly I can’t murder him. But with murder there is also something else, namely the severity of the prohibition, which you don’t have in injury or theft. And in that sense it is like the three severe transgressions. But in murder there really is another dimension because of which I may not murder him, and it is simply because that is the other person’s right. Okay? Good.