Thank you for the detailed response. What is the Torah’s criterion for introducing judicial obligations in some cases (damages) but not in others (interest)?
In chapter 1 of Gate 5 in Sha'arei Yosher, Rabbi Shimon holds that regarding a lost item found from a gentile, we do not require despair in order to acquire it (disagreeing with the Bach). What is the reasoning there? Without despair, the object has not left his possession and ownership. Can one say that the Torah rendered the gentile’s ownership ownerless the moment he lost the item, even though that contradicts judicial logic and common sense?

I don’t know.
As for a gentile’s lost object, maybe he holds that on the judicial level, when a person loses something, it leaves his possession. The requirement to wait for the owner’s despair is a stringency of the Torah.

Aviv—
In my opinion you didn’t understand Sha'arei Yosher correctly. In a quick overview, it seems he says that if the obligation is judicial, like bodily subjugation, then one can seize assets even purely on rational grounds and even without an explicit verse about it. And with that he explains the opinion that a lien is not Torah-level. That’s what he brings from Nachmanides regarding “Instead of coercing him physically, coerce him through his money,” which was said according to the opinion that a lien is not Torah-level. But regarding damages, animal tithe, and the like, there even the one who holds that a lien is not Torah-level agrees that there is a lien because of the verse, as Tosafot write (if I remember correctly in Kiddushin 13, and in Ketubot on the sugya that repayment of a debt is a commandment there is also something like this), that it depends on “a loan written in the Torah.”
That’s how it seems to me. Check it, because I only reviewed it very briefly.

Hi tx,
I don’t think your understanding is correct (I recommend reviewing it more broadly). Rabbi Shimon explains that the difference between the one who says a lien is Torah-level and the one who says a lien is not Torah-level is that according to the one who says it is Torah-level, I have a right in the assets, whereas according to the one who says it is not Torah-level, I have a claim against the owner of the assets, and therefore if the assets come into my hands I acquire them (because the owner of the assets is obligated to me), but I have no right in the assets themselves. Therefore the owner of the assets is allowed to prevent me from taking the assets (this is not a case of rescuing the oppressed from his oppressor), and even the religious court does not have the power to compel me and give him the assets, since this is an obligation between one person and another, and the court has power to compel only in commandments between a person and God. That is the difference in the laws of justice between the opinion that a lien is Torah-level and the opinion that it is not Torah-level. But after the Torah introduced that there is also a halakhic obligation that repayment of a debt is a commandment, then according to the one who says a lien is not Torah-level it becomes a matter between man and God, and therefore the religious court compels him and intervenes and gives the assets to the claimant. Without the halakhic obligation, the religious court has no power to go down to his assets and give them to me. So the right to seize assets and the lien come because of the commandment. The matter is more complex—look there at length in his words—but that is roughly the general picture.

A question for Rabbi Michi:
If I remember correctly, I read in your trilogy about the conflict between Jewish law and morality, and the point was that we are obligated to both systems simultaneously (and therefore a conflict arises because of that dual obligation), and that both stem from our obligation to obey God. And if I remember right, you mentioned that this is also the straightforward reading of Rabbi Shimon here.
From Rabbi Shimon, as I understood him, I am obligated to serve God (to obey the Torah) because reason requires it—meaning I am obligated to reason, not specifically to God. And similarly with obeying the laws of justice (morality). If so, the force of both is reason, not God. So why does the Rabbi define the reason for observing Torah and morality as God and not reason, as Rabbi Shimon seems to imply? Or is this just semantic, and the two approaches I presented are really the same thing?

Reason says that what God commands obligates us.

Yes, but reason says to fulfill the moral imperative with no connection to God at all. So the source of Torah is God, whom reason obligates us to obey, whereas the source of morality is reason itself.
Regarding Rabbi Bassan’s answer to the question why the Torah did not prohibit doubtful theft, I didn’t understand what Rabbi Shimon objects to there. I’d be happy for an explanation.

Not correct. Reason says that without God this has no force; it is just a psychological tendency. Only if there is a God who demands it does reason instruct us to fulfill it.
As for your question about Rabbi Shimon, be more specific.

At the beginning of chapter 2, Rabbi Shimon brings several later-authority answers to the question why doubtful theft is not prohibited, since we hold that a Torah-level doubt is ruled stringently. One of the answers he brings there in the name of Rabbi Mahar"i Bassan is that just as there is doubt from the perspective of the defendant whether he is obligated, so too there is doubt from the perspective of the plaintiff—it cuts both ways. If so, the burden of proof is on the one seeking to extract money from another. Rabbi Shimon raises several objections there, and I didn’t understand his objections to this explanation, which seems quite compelling.

That answer doesn’t work for a case of certain claim versus uncertain claim, because we hold that in certain-versus-uncertain we still do not extract money. Rabbi Shimon himself notes this there.

Beyond that, even if both sides have a doubtful prohibition of theft, we should have found some other way out. But to leave the money with me despite a possible prohibition of theft is problematic. Maybe they should split it, and each one waive his half to the other if it is indeed the other’s.
But really this whole answer is strange, because the symmetry is not the important issue here, as I just explained. The obvious answer is that I, as the defendant, know the truth, and therefore there is no prohibition of theft on me. The fact that the religious court does not know the truth is not a reason to force on me their laws of doubtful prohibitions. Only if there is a judicial doubt does the court need to take it into account. A prohibition-doubt as it pertains to me is my concern alone. The only problem with that is certain-versus-uncertain when extracting money.

Regarding certain-versus-uncertain, why can’t we simply say that when a person claims “uncertain,” he does not know, but he is not giving up the possibility that the money really belongs to him? So there is a greater chance that the money belongs to the one making the certain claim, but it is still not essentially different from the classic case of certain versus certain. It’s just that there it’s 50-50, while in the uncertain case it’s, say, 80-20.

Why should I care what he wants or doesn’t want? There is a doubtful prohibition of theft on him—and it is not an evenly balanced doubt; there is even one “witness” against him, because it is unlikely that the claimant is lying—and he himself does not know that this is not theft. The plaintiff, of course, according to his own claim, does know. Therefore by the laws of doubt he should have to give the money to the plaintiff, and the plaintiff can rightfully keep it.

The Rashbam and other medieval authorities bring verses for the opinion that a lien is Torah-level, and explain why according to the opinion that a lien is not Torah-level those verses are needed. According to Sha'arei Yosher in chapter 2, certainly both the opinion that a lien is Torah-level and the opinion that it is not Torah-level do not rely on verses at all, but everything is based on reasoning, and there are no derivations or verses for the liens. So does Sha'arei Yosher necessarily disagree with all those medieval authorities?
And if that really is his intent, what is the meaning of the concept “Torah-level lien”? What does that have to do with the term Torah-level?

I don’t remember regarding the verses. From the way you describe it, it indeed sounds as though his words do not fit with them.
But the term Torah-level is not difficult, because reasoning is Torah-level. The intention is to say that this is not a rabbinic enactment. You can see that with half a measure, which is Torah-level in practice according to Rabbi Yohanan, and some derive it from reasoning (“it is fit to combine”), not from the expansion of the verse “any fat.”
However, Rabbi Shimon also argues that the lien is part of the laws of justice, and it seems that the reasoning we are talking about adds a halakhic-religious layer to it, and that is the Torah-level aspect. Or perhaps the laws of justice themselves are also considered Torah-level, because they are binding as law from the outset and not by enactment. Like stealing from a gentile: even according to the opinion that it is not Torah-level, the meaning is that it is not included in “do not steal,” but there is still a “Torah-level” prohibition from the laws of justice.

According to the opinion that a lien is Torah-level, in Rabbi Shimon’s view there is no halakhic-religious layer at all, right? (One can certainly say that the force of the judicial reasoning has the status of Torah-level, but it is not among the commandments and the Torah.)

Regarding half a measure and the statement that it is fit to combine: true, that is reasoning, but it is reasoning to say that the Torah prohibited even half a measure, because half a measure plus another half equals a full measure, and that the Torah prohibited. So by reasoning I say that the Torah prohibited it. But here the reasoning does not project this onto the Torah at all.

True. And still it is appropriate to say that this is Torah-level.
You are apparently right regarding half a measure—that it is interpretive reasoning, as opposed to lien, where on the face of it the reasoning creates a law. But that is not fully precise, because if half a measure were learned from a verse there would also be punishment for it, certainly according to the later authorities who see it as a newly introduced prohibition.
See Pnei Yehoshua on Berakhot 35, who argues that blessings over enjoyment should have to be Torah-level by force of reasoning, and there it is not interpretive reasoning. However, the Tzelach there disagrees, and I discussed this at length in my article on reasoning.

According to the principle of Sha'arei Yosher that there is a judicial prohibition against stealing from a gentile—not just that I define the object as being under the gentile’s ownership because of judicial ownership, but the judicial law also prohibits me from stealing it from him—why in chapter 3, regarding a person who obligated himself to return money with interest, is the interest defined as belonging to the lender by force of the lien he obligated himself with, except that the Torah prohibited “the giver from giving and the recipient from receiving”? Seemingly there is a contradiction here between two laws: the judicial law that obligates me to pay him the interest, since I obligated myself to return with interest and reason would indicate that I am obligated, and the halakhic law that it is forbidden to receive money with interest. Why does the halakhic law override the judicial law? The judicial law would seemingly obligate me to give it, not merely define the money as belonging to the lender.

Why does the halakhic law *override* the judicial law…?

I don’t see the connection to our discussion. There is a judicial debt of money to the lender, but there is a halakhic prohibition against giving it to him. Just as there can be a halakhic prohibition against using my own property (like eating pork or deriving benefit where prohibited). What is different about the prohibition of theft is that the prohibition is defined on top of the judicial law, but with interest that is not the case. That is the whole idea of interest: even though you owe it, it is forbidden to give it.

In short, Jewish law can obviously decide to uproot a judicial law.

In chapter 3, Sha'arei Yosher writes (a principle of many later authorities) that the rule “one who incurs a greater punishment is exempt from the monetary one” does not apply to obligations a person undertakes upon himself. Then he asks, seemingly, from the Gemara in Bava Kamma 70b: “Stick a fig in my ear and acquire my thefts,” where it is not considered a sale because of that rule. But according to his principle, that rule should not apply to an obligation a person imposes on himself. And he answers there as follows: “Since he is exempt regarding the fig, there is no acquisition of money … indeed one can say that since he is exempt regarding receipt of the money, there is consequently no acquisition of money…” I’d be happy if the Rabbi could explain what he is answering there; I didn’t understand anything. (It’s in Gate 5 chapter 3.)

Your typing is garbled. I suggest that next time you simply copy the source itself.
First, one has to understand what he is asking there. His claim is that the obligation for the value of the fig is an obligation by virtue of the laws of sale, not an obligation imposed on him by the Torah, but a contractual obligation (like a borrower’s obligation in interest). If so, the rule of “greater punishment exempts from the monetary one” should not apply here, and therefore there should be an obligation to pay for the fig, and consequently the acquisition should take effect on the theft. And the explanation is that in order for there to be an acquisition, it is not enough that you receive money from me; it has to be returnable money—money whose receipt obligates you to give me something in return.
At first I thought that what he answers there is that although he indeed has a payment obligation for the fig, because he imposed it on himself, that still does not create an acquisition by money. Maybe his claim is that what is canceled by the rule of “greater punishment exempts” is not the payment obligation for the fig but the very act of transferring the fig into his ownership, which is not considered a transfer of money. Consequently he did not acquire the theft (or he acquired it and it is considered a gift, not a sale, as several medieval authorities wrote there). According to this suggestion, he is innovating that the transfer of the fig itself is not a transfer of money—not that no reciprocal obligation was created in exchange for it. But that does not seem to be his intent, and the reasoning is also unclear (why shouldn’t the fig count as something given to him?).
Afterward I thought maybe he means that this is like interest, which he explained earlier: the borrower has an obligation, but we do not collect it because of the prohibition of interest. If so, maybe with the fig too there is a monetary obligation of the thief toward the owner (because it is not canceled by the rule of “greater punishment exempts”), but because it is not actually collectible, like interest, it is not considered returnable money that can create an acquisition. Later there he indeed goes back and compares it to a loan with interest, where he is exempt regarding receipt of the money.
And it still requires further analysis.

If in the case of the fig there is a monetary obligation of the thief toward the owner, then why is it not actually collectible? The rule of “greater punishment exempts” should not apply. And I also didn’t understand this idea of returnable money. How is that different from the usual understanding of acquisition—that if you received something in exchange, you have to give something back?
To answer the question why we do not say that a doubtful prohibition is ruled stringently in monetary law, he did not have to get to the point that there is a judicial prohibition on the act of theft itself. He could simply have said that “the borders of ownership” — who the objects belong to — are determined by the judicial principle, without adding that the laws defining the borders of ownership create a judicial prohibition on me as well, forbidding me to steal and requiring the religious court to act in order to return the objects to their owners. Right?

I explained that this is like interest. There too there is a judicial debt, and yet we do not collect it. For this purpose the rule of “greater punishment exempts” does apply, because returning stolen property is not a debt a person imposes on himself.
As for returnable money, that is the issue all the later authorities extract from that Gemara. The claim is that for there to be an acquisition, one must transfer money to the seller, but it has to be returnable money—money whose transfer obligates a corresponding exchange.
There is a lot to say here; for now I’ll only say that not all money is returnable. If there is the rule of “greater punishment exempts” here, then the fig is not returnable money. The trickster received money from the owner, but the owner cannot demand something in return from him (for example, if he claims it was taken by theft).
I now remember that Ran in Kiddushin on the Mishnah of betrothing with the value of orlah brings Rashi’s view in the first chapter of Hullin that orlah does transfer its value to its owner (and only to him). He asks, according to that, how one can betroth with the value of orlah, since those monies are prohibited for benefit to the owner, and he writes that since they are not prohibited in benefit to the woman, and she received them because of him, there is betrothal. There the woman received and the man betrothing did not give in the ordinary sense. There too, seemingly, it is not returnable money. That also needs discussion.
To resolve the difficulty, you do not need that additional assumption, and indeed many of my acquaintances argued that Rabbi Shimon does not assume it. But they are mistaken—he does assume it, apparently on logical grounds, because determining the borders of ownership has no meaning without a prohibition attached to it.

In your opinion, is there any reason Rabbi Shimon added the extra assumption if it is not needed for the argument and for resolving the difficulties—other than that this is simply what he thought on straightforward logical grounds? Is there something else that forced him, for the sake of the argument, to say this? And also, why didn’t he raise his question—that at first glance it is puzzling to be obligated to two different systems—already in chapter 1, where he established this principle of the laws of justice? Why did he ask it only in chapter 2 when he came to explain the understanding of a Torah-level lien?

I wrote what I think.
Why are you interested in his didactics? Maybe he wanted to present the principle clearly first and only then raise an objection to it.

I thought maybe one could say that to answer the first question you don’t need the second assumption he adds; the first assumption is enough (that judicial law only defines things and does not obligate me to obey). But in chapter 2, when he comes to answer the difficulty about lien—why the lien is a monetary debt and not merely a commandment-obligation—for the answer he gives there, he needs the second assumption, and therefore only then does he ask his question (because his puzzlement arises only as a result of the second assumption).

Hello Rabbi,
In Gate 5 chapter 5, Rabbi Shimon discusses nullifying a gentile’s loan and takes the position that there is no commandment toward Heaven to return it to a gentile, but there is still a judicial debt that remains.
According to the one who says a lien is Torah-level, how can one nullify a gentile’s loan? After all, here “my money is by you” and “rescuing the oppressed from his oppressor” should apply (as Rabbi Shimon explained in the previous chapters), and this is actual theft. And the law of nullifying a loan was said even according to the view that robbing a gentile is prohibited.

There is “my money is by you,” but even actual money of his that is physically with me is not prohibited by the halakhic prohibition of theft. So how is a loan any different from that? The lien only says that it is his, but it does not say there is a prohibition.
Regarding minor orphans: they have no obligation to return their father’s stolen property because they are not commandment-obligated, even though “my money is by you” applies there.
According to the view that stealing from a gentile is prohibited, one has to say that nullifying a loan is not theft. Theft is something like “and he stole the spear,” not when it came into his hands permissibly, or at least not by force, but through nullification of the loan. Of course, there would still be a judicial prohibition.
Beyond that, one can prove—at least according to Maimonides’ view—that a loan is a kind of gift, and the obligation to repay it is a commandment that creates the lien. And when there is no commandment, there is no lien. Regarding a gentile there is no obligation to repay, so the loan remains a gift. According to that, perhaps there is not even a judicial prohibition here, only a moral one.

Thank you very much for the answer. According to the one who says a lien is Torah-level, there is no commandment to repay a debt, right? That is what seems from the plain meaning of the Gemara in Ketubot, and that is how the Maharam and Pnei Yehoshua explain it there, and that is also what Rabbi Shimon himself seems to understand throughout Gate 5. And we also don’t need to get to that commandment at all, since the whole obligation to return is by virtue of “and he shall return the stolen item,” no?

Quite a few medieval authorities write that there is a commandment even according to the opinion that a lien is Torah-level. The connection between Rav Pappa, who says this is a commandment, and the dispute regarding whether a lien is Torah-level is itself a dispute among the medieval authorities.

Regarding what you wrote:
1. “But even actual money of his that is with me is not prohibited by the halakhic prohibition of theft” — if he refuses to give me my money that is in his possession, isn’t that considered theft with respect to him? Isn’t he commanded in “and he shall return the stolen item”?
2. “According to the view that stealing from a gentile is prohibited, one has to say that nullifying a loan is not theft.”
Rabbi Shimon writes at the end of chapter 2 as follows: “For according to the one who says a lien is Torah-level, when the other prevents him from collecting, he is keeping under his control something that the plaintiff has a right to collect, and on this there is coercion by the religious court by force of the laws of justice, and the litigant himself could also coerce him by striking him when he prevents him from using the power of his right; likewise the religious court coerces in this matter by force of justice, to rescue the oppressed from his oppressor.”
So we see explicitly that Rabbi Shimon defines the loan, according to the one who says a lien is Torah-level, as theft (“rescuing the oppressed from his oppressor”), and the rule that a person may enforce his own rights applies here.
So according to him you can’t say that nullifying a loan is not theft, can you?

It’s hard for me to discuss this with such long gaps. I’ll answer briefly.
1. I didn’t understand the question.
2. What did you see in Rabbi Shimon? He writes that one can compel through the religious court even for obligations of the laws of justice. That does not mean there is a prohibition here of “do not steal.”

Sorry for the delay; I simply didn’t notice that the Rabbi had replied.
1. From what I understood, you argued that the fact that my money is in someone else’s possession does not mean that the money in his possession is defined as theft. My question was: why is it not defined as theft if he refuses to give me my money and forcibly keeps it with him, even though it came into his hands permissibly?
2. Because he calls it “rescuing from his oppressor,” which is full-fledged theft, and he so strongly applies the law that a person may enforce his own rights. And Rabbi Shimon writes (in that same chapter, a bit before the paragraph I quoted above) that the law of enforcing one’s own rights is “only to save what is his when the other is stealing it from him; he may prevent him by whatever means possible, even by striking him. But to compel the other to fulfill an obligation incumbent on him—that is not the law…”
If so, he certainly defines the loan as theft according to the one who says a lien is not Torah-level.

1. Because theft is a halakhic prohibition, and the halakhic prohibition is not always applied to judicial theft. When I hold another’s money in my hand, then by definition it follows that I am a judicial thief. But the Torah does not always apply to that the halakhic prohibition of “do not steal,” as for example in stealing from a gentile, according to the opinion that there is no Torah-level halakhic theft there.
2. I don’t remember at the moment, but I don’t think you are right. Rescuing the oppressed from his oppressor and enforcing one’s own rights are defined even when there is no negative commandment of “do not steal,” but only theft by force of the laws of justice. That is certainly no worse than coercion against the attitude of Sodom, because here there is even a judicial obligation and not merely a commandment and an act of kindness.