Texts and Traditions 534 Chapter 10: : The New Scripture 535 liable [financially for either] .120 And the sages agree with Judah is fifty cu_bit~. R:~.bi Simon says: "He that kindled the fire shall surely that if a man set fire to a large building he must make restitution for make rest1tut10n: it all depends on the size of the fire. It happened once everything therein; for such is the custom among men to leave [their that. a fire spread across the Jordan and did damage th ere, since· I't was a goods] in their houses.121 big fire. When does this obtain? When the fire J·umps . B u t 1'f I't k eeps c1 ose to the· li groundbl and spreads that way, even though it go a dis t ance o f a mil e, 10.4.3 Mekhilta of , Nezeqin 14: h e is a e. 122 Restitution for Damage by Fire "So. that the stack ... be consumed"· This means any ki n d o f a p ile. I t As opposed to the Mishnah which only rarely quotes Scriptural proof texts, also mcludes a row of reeds or of beams, and likewise a heap of stones or the halakhic Midrashim provide what is constructed as a sustained biblical of pebbles prepared to be used for plastering. commentary, showing how tannaitic law was derived from the . In so "Or the standing corn (grain)." Trees are also included. "Or the ~eld." That is,_ even if it just dried up the ground. May it not doing, halakhic Midrashim, like the Mekhilta, emphasize the unity of the mean, even if there were implements hidden in the stacks and the written and oral , which, to the , were considered to be one b ? I " . y were urnt. t says: Or the standmg corn or the field." Just as the field is whole. open, so also what stands in it must be open. ."The . one that kindled the fire shall surely make restitution ."Wh YR · this said? Because it says: ''A man" (v. 4), from which I know only about a "If fire breaks out;' etc. (Ex. 22:5). Why is this said? Even if it had not man. But how about a woman, a tumtum123 or a hermaphrodi'te?. It . "Th . says. been said I could have reasoned: Since he is liable for damage done by ebone that kindled the fire shall surely make restitution"-whoever it what is owned by him, shall he not be liable for damage done by himself? may e. If, then, I succeed in proving it by logical reasoning, what need is there of I thus far know onl~ about damage caused by grazing or by burning. saying: "If fire break out"? Simply this: Scripture comes to declare that in How about all other_kinds of damage mentioned in the Torah? Behold, all cases of liability for damage mentioned in the Torah, one acting under you reason and establish a general rule on the basis of what is common to duress is regarded as one acting of his own free will, one acting uninten­ ;,t~ese two: The peculiar aspect of damage by grazing is not like the pecu­ tionally is regarded as one acting intentionally, and the woman is regarded liar a~pec~ of damage b_Y burning, nor is the peculiar aspect of damage by like the man. purnmg hke the peculiar aspect of damage by grazing. What is common "And catches in thorns." Behold, thorns are mentioned only with ~o both of them is: that it is their characteristic to do damage, they are regard to fixing the distance within which one is liable. If there are thorns our property, and it is incumbent upon you to guard them. And when around, there is a certain distance within which one is liable. If there ar ~amage is done, the one causing the damage is liable to pay for the dam­ no thorns around, there is no such distance. Hence the sages said: If th ge from the best of his land. 124 fire gets across a river, or a road, or a stone fence higher than ten hand..S breadths and causes damage, he is not liable. How do we determine th 10.5 HALAKHAH AND matter? We regard him as standing in the center of a field, requiring a k of seed, and lighting the fire. These are the words of Rabbi Eleazar be 10.5.1 Babylonian l:lagigah 14a: Azariah. Rabbi Eliezer says: The distance within which he is liable· Defining the Aggadah125 16 cubits, the usual width of a public road. says: The distan ~e f~llow~ng e~cerpt shows that the sages understood the word aggadah lltng ) as if derived from a root meaning "draw," in that it drew the heart 120. Since he is criminally liable for the death of the slave, he bears no financial penal according to an established principle of halakhah. He is exempt from liability for the e study of Torah and its observance. since it could have fled the fire. 121. The arsonist would have known in advance about the presence of these pos~ · One whose sexual characteristics cannot be determined. sions. · Therefore, anyone who causes damage in any way at all is liable to pay for the 122. Trans. J. Z. Lauterbach, Mekilta de-Rabbi Ishmael OPS Library of Jewish Clas e. Philadelphia: Jewish Publication Society, 1976), vol. 3, pp. 110-12. Trans. S. Berrin. 536 Texts and Traditions Chapter 10: Mishnah: The New Scripture 537

sustain himself; the man with the small change could spend and sustain himself. ... "Every support of water" (Is. 3: 1): This refers to the Masters of aggadah, for they draw the hearts of men like water by means of aggadah. Rabbi went to a place and he found Rabbi Levi sit­ ting and expounding: "A man to whom God gives riches, property and 10.5.2 Talmud l:lagigah 1:8 (76a): wealth so that his soul does not lack anything he may desire, but God does 126 Revelation of the Oral Law not permit him to eat of it, for a foreigner will eat of it" (Eccl. 6:2). "Does This passage shows how the Rabbis understood both halakhah and aggadah not permit him to eat of it" refers to a Master of Aggadah who does not to be part of the oral Torah, given by God at Sinai. forbid and does not permit, does not declare pure and does not declare impure.... ~~ Rabbi said," 'Upon them'-'And upon them'; 'all'­ 10.5.4 Sheqalim 5:1 (48c): 'according to all'; 'words'-' the words.' Scripture, Mishnah, Talmud, hala­ Separation of Halakhah and Aggadah129 khah, and aggadah. Even that which an experienced student will teach, The role of Rabbi Akiva in organizing the separate disciplines of aggadah has already been taught to Moses at Sinai."127 and halakhah is asserted here, although some held that these approaches were 10.5.3 Jerusalem Talmud Horayot 3:5 (48c): already distinguished by the Persian period. Modern scholars assume that The Power of Aggadah128 these distinctions were made only in the tannaitic period. These amoraic passages emphasize the power of aggadah to provide an ~~ understanding even deeper than that of Talmud, logical deduction from legal Rabbi Jonah said: "It is written, 'Therefore I will give him a portion teachings. Further, the text notes the non-halakhic character of aggadah which -yvith the great, and with the mighty shall he divide the spoils' (Is. 53:12). cannot lead to legal rulings. •his refers to Rabbi Akiva who organized the learning of , Hala­ hah, and Aggadah." But some say: "The Men of the organized these. So Rabbi Samuel son of Rabbi Yose son of Rabbi Abun expounded: "A at did he organize? [Rabbi Akiva] organized generalizations and partic- rich man is wise in his own eyes, but an understanding poor man will arizations."130 probe him" (Prov. 28:11). ''A rich man" refers to a Master of the Talmud. "But an understanding poor man will probe him" refers to a Master of 10.6 THE REDACTION OF THE MISHNAH Aggadah. [It is comparable] to two who entered a city. One had bars of gold and 10. 6 .1 Iggeret Rav Sherira 3: The Mishnah131 one had small change. The man with the bars of gold could not spend and av was the first post-talmudic authority to deal systemati­ 126. Trans. S. Berrin. with the question of how the Mishnah, , baraitot and Talmud 127. Deut. 9:10, describing the writing on the tablets of the Ten Commandments, says, e compiled. This section of his work deals with the Mishnah. "And on them was written according to all the words which the Lord spoke with you on. the mountain." Rabbi Joshua noted that it does not simply say "Upon them" but "And f & upon them"; not simply "all" but "aaording to all"; not simply "words" but "the words."' He says that these apparently superfluous words were added to teach that the revelation a Sinai included much more than the Ten Commandments themselves, namely, Scripture . This latter opinion would date the organization of the corpus of tradition to the Mishnah, etc. period rather than the Roman period. 128. Trans. S. Berrin. '. Trans. Rabinowich, The Iggeres ef Rav Sherira Gaon, pp. 20-32.