Bava Kamma 109a (קט.) — the Talmud in English

5. But if he explicitly said, “It is forbidden by a vow for him to derive benefit from his property” ,

during his lifetime and after his death, if he died

the father,

his son shall not inherit him,

because a person can prohibit something belonging to him to another person for the time when it leaves his possession,

and the son shall return

his share of the inheritance

to his sons

or

to his brothers

of his father,

And if he has nothing

to eat and needs money, he

shall borrow

money equivalent to his share of the inheritance,

and his creditors

shall

come and collect

from his brothers or from his father’s brothers the share of the person who is prohibited by an oath from deriving benefit from the inheritance. For although he is forbidden to derive benefit from the inheritance, he is permitted to benefit by having his debt paid from the inheritance:

Gemara:

We learned in the Mishna: One who robs his father must pay the principal and the fifth to his sons or to his brothers.

Rav Yosef said:

If the robber has neither brothers nor paternal brothers, he may not take the stolen property for himself. Rather, he must remove it from his possession and

even give it to a charity fund.

Rav Pappa said: And he must say

when he gives the stolen property to charity ,

“This is my father’s stolen property.”

And we raise an objection: Why must he remove the stolen property from his possession? He is his father’s heir.

And why

do we not say: Just as his father could have waived his claim against him, in which case he would not have been obligated to remove the stolen property from his possession, so too he

can waive the claim against himself—that is, he can waive it for himself and will no longer need to remove the stolen property from his possession ?

he can waive it for himself and will then no longer need to remove the stolen property from his possession ?

Did we not learn

that if the victim

waived the principal for him but did not waive the fifth,

and so on?

Apparently,

stolen property

is subject to waiver; even if the stolen property has not left his possession, he is exempt from returning it once he is no longer considered a robber because his theft was waived. Here too, then, we should say that the robber who is the heir can waive the claim against himself and need not remove the stolen property from his possession;

and even if the stolen property has not left his possession, he is exempt from returning it once he is no longer legally considered a robber because the victim waived his claim. Here too, then, we should say that the robber who inherited the property can waive the claim against himself and need not remove the stolen property from his possession.

Rabbi Yohanan said: It is not difficult. This

case, in which we find that it is possible to waive a claim concerning stolen property, is the opinion of

Rabbi Yosei HaGelili;

is the view;

that

case, in our Mishna, which states that he must remove it from his possession and cannot waive the claim against himself, is the opinion of

Rabbi Akiva.

is the view.

As it is taught in a beraita:

With regard to one who robs another, denies it, and swears falsely, the verse states: “He shall restore his guilt-offering in its principal, and add its fifth to it,”

“And if the man has no redeemer to restore the guilt-offering”

to him, “the guilt-offering that is restored to the Lord shall be given to the koen, besides the ram of atonement with which he shall make atonement for him” [Numbers 5:8]. And we explain below that from the phrase “to the Lord, to the koen” we learn that the name of God acquired it and gave it to the koen. From here it follows that if the victim died and has no redeemer to receive the principal and the fifth, the robber must pay the principal and the fifth to the koen.

And we raise the following question:

But is there a person in Israel who has no redeemers?

The law of inheritance states that the nearest relative takes precedence, continuing as far as Jacob our father; there is no Jew who does not have some relative in the world.

Rather,

it must be

that the verse is speaking of the robbery of a convert,

that is, if he robbed a convert and swore to him that he had not robbed him, and the convert died, the robber must pay the principal and the fifth to the kohanim.

If he robbed

a

convert and swore to him

that he had not robbed him,

and he heard that the convert had died,

and wished to atone for his robbery,

and was bringing his money and guilt-offering to Jerusalem

to give them to the kohanim,

and encountered

on the road

that same convert

about whom it had become rumored that he had died,

and the convert converted it into a loan for him

the convert

as a loan—

that is, he said to him: “Let the money remain in your possession as a loan”—

and

afterward

the convert died,

the convert

the other party acquired

the robber, who had become a borrower,

what was in his possession,

as is the law concerning one who borrows from a convert and the convert dies: Since there is no one to whom he can return the debt, he acquires it as ownerless property.

This is the statement of Rabbi Yosei HaGelili.

Rabbi Akiva says: He has no

the robber

remedy until he removes his stolen property from his possession,

and although the money has already become a loan in his possession, he is obligated to remove it from his possession . Apparently, even if the robber’s theft was waived, he must remove the stolen property from his possession .

And we explain:

According to

the view of

Rabbi Yosei HaGelili, it makes no difference

whether a son robbed his father, who is his heir, and wishes to waive

for himself

the theft that he inherited;

it makes no difference

whether the victim wishes to waive the claim

for others

who robbed him;

he can waive it. Therefore, the earlier Mishna, which teaches that if he waived the principal for him but not the fifth, is in accordance with Rabbi Yosei HaGelili.

and therefore the earlier Mishna, which teaches that he forgave him the principal but not the fifth, is in accordance with Rabbi Yosei HaGelili.

And according to

the view of

Rabbi Akiva,

who says that the robber of a convert has no remedy until he removes the stolen property from his possession,

it makes no difference

whether the victim wishes to waive the claim

for others

who robbed him,

or whether

a son robbed his father, inherited the stolen property, and wishes to waive it

for himself—he cannot waive it .

He must remove the stolen property from his possession. It follows that the statement in our Mishna, that one who robbed his father returns it to his sons or brothers and cannot waive it for himself, is in accordance with Rabbi Akiva.

Text missing (perhaps the missing note is note 4 on page 102: “... he explained that there is no dispute between Rabbi Meir and Rabbi Yehuda concerning the law of transformation, whether it effects acquisition...”)

And

we raise an objection:

According to Rabbi Yosei

HaGelili, who says that if one robs a convert, and the convert converted the debt into a loan for him and then died, the robber acquired what was in his possession, as is the law concerning one who borrowed from a convert and the convert died, whereby he acquired it as ownerless property, it is implied from his statement that if the convert did not convert the stolen property into a loan for him and died, the robber must remove the stolen property from his possession. Why, then, do we not say that he acquires the convert’s money as ownerless property and waives the claim against himself? For you said that according to Rabbi Yosei, it makes no difference whether it is for himself or for others: he can waive it.

And we answer: Do not infer from Rabbi Yosei’s words that the robber is exempt from removing the stolen property from his possession only through converting it into a loan, for

the same law applies even if he did not convert it

the convert did not convert it for the robber

into a loan.

If the convert dies, the robber acquires it as ownerless property, waives the claim against himself, and is exempt from removing the stolen property from his possession.

And the fact that it teaches

in the beraita

“he converted it into a loan for him,”

is stated

to demonstrate the force of Rabbi Akiva, who

says

that even if he converted it into a loan for him,

the convert

as a loan,

the money is still considered to be in the robber’s possession as stolen property, and

he has no remedy until he removes the stolen property from his possession.

But according to Rabbi Yosei, even without converting it into a loan, if the convert dies, the robber can acquire the money and waive the theft for himself.

Rav Sheshet challenged Rabbi Yohanan:

to Rabbi Yohanan:

If so,

as you said, that

according to

the view of

Rabbi Yosei HaGelili, a person can waive a claim concerning stolen property in his possession, why did the Mishna cite Rabbi Yosei’s view only with regard to the fact that he can waive the claim for others, as it says: “He waived the principal for him,” and Rabbi Yohanan establishes it in accordance with Rabbi Yosei?

Let it teach us

that he can waive it

for himself,

for example, a son who robbed his father and inherited from him, so that he need not remove the stolen property from his possession, but can waive his theft for himself and thereby leave the category of robber,

and

it would follow

by a fortiori reasoning

that he can waive it

for others

who robbed him.

And likewise,

according to

the view of

Rabbi Akiva,

who says that even if the victim waived the claim for others, the robber must remove the stolen property from his possession, why did the Mishna cite his view only with regard to the fact that he cannot waive it for himself, as it says: “One who robs his father must pay his sons or brothers,” and Rabbi Yohanan establishes it in accordance with Rabbi Akiva?

Let it teach us

that even if the victim waived the claim

for others, he cannot waive it,

and they must remove the stolen property from their possession.

And

it would follow

all the more so

that if he robbed his father and the father died, and the robber wishes to inherit from him and waive the claim

for himself, he cannot waive it.

Rather, Rav Sheshet said: This

case mentioned above, where he waived the principal for him, implying that it is possible to waive a claim concerning stolen property,

and that

case stated in our Mishna, that one who robs his father cannot waive the claim for himself, is the opinion of

Rabbi Yosei HaGelili.

is the view.

When Rabbi Yosei HaGelili says that he can waive it,

the statement concerning stolen property refers to a victim who wishes to waive the claim

for others

who robbed him.

But

one who wishes to waive the claim

for himself,

such as a son who robbed his father, the father died, and the son wishes to inherit from him and waive the claim against himself,

cannot waive it.

By contrast, according to Rabbi Akiva, even the victim cannot waive the claim for the robber, and the robber must remove the stolen property from his possession.

And we raise the following question:

But why, then

did Rabbi Yosei say that if one robs a convert, and the convert converted the debt into a loan for him and died,

the other party acquired what was in his possession, and need not remove the stolen property from his possession? This implies that a person can waive for himself a theft that he acquired. And we explain: The reason the robber acquired the convert’s money was

and need not remove the stolen property from his possession? This indicates that a person can waive the claim against himself concerning stolen property that he acquired. And we explain: The robber acquired the convert’s money

because he converted it for him

the convert

into a loan.

In doing so, he waived his claim against him, and the money in his possession became a loan. But otherwise, if the convert died without converting the stolen property into a loan for the robber, the robber cannot acquire the stolen property as ownerless property and waive the claim against himself.

Rava said: Both this and that are the opinion of Rabbi Akiva,

who says that a robber has no remedy until he removes the stolen property from his possession.

As for the difficulty posed by the earlier statement, “He waived the principal for him,” and so on, which implies that it is possible to waive a claim concerning stolen property,

when Rabbi Akiva says that he cannot waive it,

it is specifically where the robber comes to waive the claim

for himself,

when he acquired the stolen property, such as one who robbed a convert and the convert died, or a son who robbed his father and the father died .

But

one who comes to waive the claim

for others

who robbed him

can waive it.

By contrast, according to Rabbi Yosei, the robber can waive the claim for himself even without the victim converting the stolen property into a loan for him. Therefore, our Mishna cannot accord with his opinion, since it says that one who robs his father pays his sons or brothers, implying that he cannot waive the claim for himself.