Bava Kamma 114a (קיד.) — the Talmud in English

Because

they adjudicate monetary matters

on the basis of one person,

they judge and extract money on the testimony of only one witness. Consequently, through his testimony he caused the other person to suffer an unlawful loss.

And we said this only with regard to one,

only if he is a lone witness is it forbidden for him to testify.

But with regard to two, no.

Two witnesses are permitted to testify in a gentile court, since even under our law money is extracted on the basis of their testimony.

And we said that even one,

that he is forbidden to testify,

only with regard to the law of Magista,

in the court of the villagers, who do not know how to adjudicate properly.

But with regard to Bei Davaar,

the governmental court,

they too, with one—

—

an oath they impose upon him.

They too do not extract money on the basis of one witness; rather, they merely obligate the litigant to take an oath to deny the witness’s testimony, as required by Torah law. Therefore, it is permitted to testify before them.

Rav Ashi said: When I was in the presence of Rav Kahana,

when I was with Rav Kahana,

we raised the following dilemma: In the case of an important person, upon whom they rely as they would on two witnesses,

since the gentiles rely upon him as they would upon two witnesses, is it the case that because they

extract money on the basis of his testimony

extract money on the basis of his testimony because of his reliability,

and

therefore

he may not testify,

it is forbidden for him to go and testify even in Bei Davaar, lest they extract money on the basis of his testimony unlawfully?

Or perhaps, since he is an important person, he cannot evade them,

he cannot evade them by refusing to come and testify,

and

therefore

he may testify,

it is permitted for him to go and testify?

And we conclude:

Teyku!

Rav Ashi said: With regard to this Jew who sells land to a gentile on the boundary of another Jew’s land,

a Jew who sold a field to a gentile that bordered the field of another Jew,

we excommunicate him,

we place him under a ban.

And we raise an objection:

What is the reason?

If you say it is because of the law of bar metzra,

the law is that the bar metzra—the owner of the field bordering the field being sold—has the right of first refusal to purchase the field, and therefore we excommunicate him because he did not sell the field to his Jewish neighbor?

This cannot be said, because

didn’t the Master say: If one buys from a gentile or sells to a gentile

one who buys a field from a gentile or sells a field to a gentile,

there is no violation of the law of bar metzra!

And we answer:

Rather,

he is excommunicated for the following reason:

he says to him,

the Jewish owner of the adjacent field says to the seller:

“You have brought a lion to my boundary,”

you have brought a lion to my border, which may cause me harm. Therefore

we excommunicate him until he accepts upon himself responsibility for every harm that comes because of him.

We excommunicate the seller until he accepts responsibility for compensating the Jewish neighbor for any damage that the gentile may cause him.

Mishna:

If the tax collectors took his donkey

for the tax,

and gave him another donkey

in its place,

or

if bandits took his garment and gave him another garment,

even though the donkey and garment that the tax collectors and bandits gave him are presumably stolen, nevertheless

these are his,

because the owners despair of recovering them.

Since the owners have presumably already despaired of recovering the donkey and garment, when he takes them from the tax collectors and bandits, he acquires them through despair and a change of possession.

One who rescues property from a river,

which swept away his fellow’s property,

or from an invading army

the army of war,

or from bandits

who robbed his fellow—if

the owners despaired,

such that we know explicitly that they despaired of their property, for example, we heard them say, “Woe to us for the loss of our money,”

these are his,

belonging to the one who rescued them.

And similarly, in the case of a swarm of bees,

a swarm of bees that flew out of another person’s hive and entered his domain,

if the owners despaired

of them, such that we know that they despaired of them,

these are his.

Rabbi Yohanan ben Beroka said: A woman or a minor is trusted to say: “From here this swarm emerged,”

and they must return the swarm to this person.

And he may walk through his fellow’s field

one whose swarm of bees left his domain and entered his fellow’s field is permitted to enter his fellow’s field without permission in order

to rescue his swarm.

And if he caused damage

to his fellow’s field while walking through it,

he pays for whatever damage he caused.

But he may not cut down his branch with the intention of paying the money.

If the bees settled on a branch of his fellow’s tree, he may not cut down the branch in order to transfer the entire swarm intact into his own domain, even if he intends to pay his fellow the value of the branch.

Rabbi Yishmael, son of Rabbi Yohanan ben Beroka, says: He may even cut it down

he is permitted to cut down his fellow’s branch

and give the money

and pay him for it.

Gemara:

The tanna taught: If he took

from the tax collectors the donkey that they gave him in place of his own donkey,

he returns it to the original owners.

He must return it to its owners. This beraita disagrees with our Mishna, which says: “These are his.”

And we explain the reasoning of the tanna of the beraita:

he holds: mere despair does not effect acquisition.

Despair alone does not effect acquisition; therefore, although the owners despaired of the donkey in the customs collector’s possession, the customs collector did not acquire the donkey.

And initially, it came into his possession through a prohibition.

And when the donkey came into the possession of the second person, it came to him through a prohibition; therefore, he is obligated to return it to the original owners.

Some say

that the beraita also concedes that he is not legally obligated to return it. Rather, the beraita holds that

if he comes to return it,

if he is pious and wishes to impose stringency upon himself,

he should return it to the

original

owners, and not to the customs collector.

What is the reason?

Because

mere despair effects acquisition.

And the customs collector acquired the donkey through despair, and it is permitted to take it from him.

However, if he says,

if the person to whom the customs collector wishes to give another donkey wishes to impose stringency upon himself, and he says:

I do not want

I do not wish

property that is not mine; he returns it to the original owners.

We learned in the Mishna: If bandits took his garment and gave him another garment,

these belong to him, because the owners

despair of recovering them.

Rav Ashi said: They taught

that the owners despair when the item is taken by bandits

only

in the case of

gentile bandits; but

in the case of

Jewish bandits, they do not.

The owners do not despair of recovering the item, because the owners

think: Tomorrow I will summon him to judgment.

Since the bandit is Jewish, the owners hope that they will summon the bandit to a Torah court and recover the stolen property from him, and therefore they do not despair.

Rav Yosef raised an objection against this: On the contrary, the reverse is more reasonable!

Gentiles, who judge with force,

who adjudicate in their courts arrogantly and by force,

do not cause despair.

Therefore, if the bandit is a gentile, the owners do not despair, because they hope to summon the gentile to their courts, where they will forcibly recover the stolen property from him. But with a court of

Jews, since they merely say,

they only say to the robber, “Go out and give it to him,” and do not beat him with sticks and force him to return it,

it causes despair;

therefore, the owners despair when the bandit is Jewish.

Rather, if it was stated,

this statement of Rav Ashi

was stated with regard to the latter clause

of the Mishna;

it was stated.

As we learned in the latter clause of the Mishna:

One who rescues an item from gentiles or from bandits,

if the owners despaired, these items are

his.

And we infer: Only

if the owners despaired,

meaning that we know explicitly that they despaired,

then

are these items his; but

ordinarily,

if we do not know explicitly that they despaired,

no,

we do not say that, presumably, they despair when the item is taken by bandits.

And regarding this Rav Ashi said:

They taught

that ordinarily they do not despair

only

with regard to

gentile bandits, because they judge with force,

as their courts forcibly compel the robber to return the stolen property.

But with Jewish bandits, since they merely say,

they only tell him to return it and do not compel him,

it causes despair;

the owners ordinarily despair, and it is unnecessary for us to know with certainty that they indeed despaired.

We learned there,

in tractate Kelim:

The hides belonging to a homeowner

who does not customarily sell his hides, but uses them himself and prepares them for various uses,

a thought renders them susceptible to impurity

if he thought to use his hides as they are, without any further labor being necessary—for example, to make a mat for a bed or a tablecloth from them. They immediately become susceptible to impurity, as an item whose work has been completed.

But those belonging to a tanner,

the hides of a craftsman who processes them for sale,

a thought does not render them susceptible to impurity.

Although he thought to use them as they are, they are not yet susceptible to impurity, since if people come to purchase these hides, he will sell them to them, and they will make shoes from them. It follows that the work on the hides has not yet been completed.

Hides

belonging to a robber, a thought does not render them susceptible to impurity.

The robber’s thought to use the stolen hides as they are is ineffective in making them subject to the laws of susceptibility to impurity, because the hides do not belong to him. In the case of robbery, the owners do not despair, since they know who the robber is and hope to summon him to judgment and recover the stolen property from him. A person’s thought is ineffective with regard to susceptibility to impurity for an item that does not belong to him.

And hides

belonging to a thief, a thought renders them susceptible to impurity,

because in the case of theft the owners despair, since they do not know who the thief is in order to summon him to judgment. The thief acquires the hides through despair, and they belong to him; therefore, his thought regarding them is effective.

Rabbi Shimon says: The matters are reversed: With regard to hides belonging to a robber, a thought renders them susceptible to impurity,

because in the case of robbery the owners despair, since they know that the robber is a violent man who robbed them in full view and against whom they were unable to stand, and they have no hope of recovering the stolen property from him. Therefore, the hides belong to him, and his thought regarding them is effective.

Whereas

with regard to hides belonging to a thief, a thought does not render them susceptible to impurity, because the owners did not despair,

as they still hope to find the thief and summon him to judgment. Therefore, the hides do not belong to him, and his thought does not render them susceptible to impurity.

Ulla said: The dispute

between the Rabbis and Rabbi Shimon is only

in an ordinary case,

where we have not heard the owners express despair. The first tanna holds that ordinarily, in a case of theft, there is despair of the owners, whereas ordinarily, in a case of robbery, there is no despair of the owners. Rabbi Shimon, by contrast, holds the reverse: Ordinarily, in a case of robbery there is despair, and ordinarily, in a case of theft there is no despair.

But in a case where it is known,

where we have heard the owners express despair,

everyone agrees that despair effects acquisition.

Even in the case of a robber according to the Rabbis, and a thief according to Rabbi Shimon.

Rabba said: There is a dispute even in a case where it is known.

Even when we have heard the owners express despair, the Rabbis hold, with regard to a robber, that this is not despair, because at every moment the owners intend to summon him to judgment and recover the stolen property from him. And Rabbi Shimon likewise holds, with regard to a thief, that this is not despair, because the owners always hope to find the thief and summon him to judgment.

Abaye said to Rabba: Do not disagree with Ulla.

Do not dispute Ulla

for we learned in the Mishna in accordance with his opinion.

For this is what we learned in the Mishna, in accordance with his view.

In that same Mishna in which the Rabbis and Rabbi Shimon dispute, Rabbi Shimon’s statement says that the reason theft does not involve despair is

because the owners did not despair.

And we infer:

The reason

the entire reason is

because the owners did not despair; but if the owners did despair,

if it is known to us that they despaired, even Rabbi Shimon concedes that

these items belong to him.

This is explicitly in accordance with Ulla’s statement!

He said to him,

Rabba said to Abaye:

We

interpret the phrase “because there is no despair on the part of the owners”

as teaching it

to mean that even if the owners despaired, their despair is not considered despair, since in their hearts they still have not despaired.

And we challenge this:

We learned

in our Mishna:

If customs collectors took his donkey

and gave him another donkey, or if bandits took his garment and gave him another garment, these belong to him because the owners despair of recovering them.

Yet a customs collector is a robber, who takes property publicly, whereas a bandit is a thief.

And raise the following difficulty:

Whose opinion is this?

Which of the tanna’im who disputed whether theft involves despair of the owners, or robbery involves despair, does our Mishna follow?

If it is the Rabbis, the case of a robber is difficult.

For the Rabbis hold that, in the case of a robber, the owners do not despair, whereas our Mishna says with regard to a customs collector, who is a robber, that the owners despair of recovering the property.

And

if it is Rabbi Shimon, the case of a thief is difficult.

For Rabbi Shimon holds that, in the case of a thief, the owners do not despair, whereas our Mishna says with regard to a bandit, who is a thief, that the owners despair.

Granted, according to Ulla, who said that

that

in a case where it is known

that the owners despaired, everyone agrees that both in the case of a thief and in the case of a robber there is despair, and

the thief and the robber acquire

the stolen property through the despair. Accordingly, it is possible to resolve the difficulty:

Here too,

the Mishna is speaking

of a case where it is known

that the owners despaired,

and it follows everyone’s opinion.

But according to Rabba, who said that even

that even

in a case where it is known

that the owners despaired, there is

also a dispute between the Rabbis and Rabbi Shimon, the difficulty remains:

between the Rabbis and Rabbi Shimon, if so there is a difficulty:

Whose opinion is this,

our Mishna?

It follows neither the Rabbis nor Rabbi Shimon!

And we resolve: The Mishna is speaking only of a robber. The bandit mentioned in our Mishna is not a thief who comes secretly. Rather, the Mishna is speaking of

an armed bandit,

who is a robber who comes publicly and by force.

And it is Rabbi Shimon’s opinion,

who holds that the owners despair in the case of a robber.

And we challenge this:

If so, this is precisely the case of a robber.

The Mishna has already taught the law of a robber, namely, the customs collector; why does it need to teach us the law of a robber again?

And we resolve:

There are two types of robber.

The Mishna wishes to clarify that there are two forms of robber: a customs collector and an armed bandit.

And we challenge this:

Come and hear:

It is taught in a beraita:

A thief, a robber, and one who coerces,

a robber who pays for what he takes, if they consecrated the stolen property, or separated teruma or tithe from it, then

their consecration is valid,

the consecration takes effect upon the stolen property, and it is prohibited to derive benefit from it;

and their teruma is teruma,

and it is prohibited for a non-koen to eat it;

and their tithes are tithe.

Only the owners can consecrate their property and separate teruma and tithe from their produce. The beraita, which says that both a thief and a robber can consecrate and separate teruma and tithe from the stolen property, must therefore hold that in both cases the owners despair, and they acquire the stolen property through despair.

And now the difficulty arises:

Whose opinion is this?

Which tanna does the beraita follow?

If it is the Rabbis, the case of a robber is difficult;

how can he consecrate the property, since the owners did not despair?

If it is Rabbi Shimon, the case of a thief is difficult;

how can he consecrate the property?

Granted, according to Ulla, who said that in a case where it is known that the owners despaired, everyone agrees that there is despair and

where the owners abandoned hope, everyone agrees that there is abandonment and

he acquires

the property. It is possible to resolve the difficulty:

Here too,

the beraita is speaking

of a case where it is known, and it follows everyone’s opinion.

But according to Rabba, who said that even in a case where it is known there is a dispute, the difficulty arises:

there is a difficulty:

Whose opinion is this? It follows neither the Rabbis nor Rabbi Shimon?

And we resolve:

Here too,

the beraita, too, is not referring to an ordinary thief, but rather

to an armed bandit,

who is a robber.

And it is Rabbi Shimon’s opinion,

who holds that in the case of a robber, the owners despair.

And we challenge this:

If so, this is precisely the case of a robber!

The beraita has already mentioned the law of a robber. And we resolve:

There are two types of robber.

The beraita teaches us that there is another form of robber, namely, an armed bandit, who is also considered a robber.

And if you wish, say:

This beraita

is Rabbi’s

opinion, who holds that both in the case of a thief and in the case of a robber, the owners despair. Thus, the thief mentioned in the beraita is an ordinary thief, as the term ordinarily indicates.

As it is taught in a beraita: Rabbi says: A thief

whose law

is like that of a robber

with regard to the owners’ despair.