Bava Kamma 114b — the Talmud in English

And it is established for us,

the Gemara below explains that Rabbi’s intention is that the thief’s law is

like that of a robber according to Rabbi Shimon.

And in both cases the owners despair, and not that his law is like that of a robber according to the Rabbis, according to whom the owners do not despair.

The essential matter: Rabbi says: I say: a thief is like a robber.

They raised a dilemma before them:

Does Rabbi

say that he is like a robber according to the Rabbis,

that the thief’s law is like that of a robber according to the Rabbis, according to whom the owners do not despair,

and does not acquire

—neither the thief nor the robber acquires the stolen object?

Or perhaps he says that he is like a robber according to Rabbi Shimon,

that even in the case of a thief the owners despair, as in the case of a robber according to Rabbi Shimon,

and he acquires,

both the thief and the robber acquire the stolen object through the despair?

Come and hear:

We learned in our Mishna:

“The tax collectors took his donkey.”

And it is explained in the Mishna that both in the case of a tax collector, who is a robber, and in the case of an armed bandit, who is a thief, the owners despair.

And let us challenge this:

Whose?

According to whose view does the Mishna hold?

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

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

Granted, if you say that Rabbi says that he is like a robber according to Rabbi Shimon

and acquires,

then the Mishna can be explained:

Whose is this?

It is Rabbi’s.

For the Mishna holds like Rabbi, that both in the case of a thief and in the case of a robber the owners despair, and

that is why they acquire

the stolen object.

But if you say

that Rabbi

says that he is like a robber according to the Rabbis,

that even in the case of a thief the owners do not despair,

and he does not acquire,

then the difficulty remains against the Mishna:

“Whose is this? Not Rabbi,”

for according to his view, neither in the case of a thief nor in the case of a robber do the owners despair;

“and not Rabbi Shimon,”

for according to his view, the owners despair only in the case of a robber and not in the case of a thief;

“and not the Rabbis,”

for according to their view, the owners despair only in the case of a thief and not in the case of a robber, whereas our Mishna says that both in the case of a thief and in the case of a robber the owners despair?

And we reject the proof: In fact, Rabbi holds that the thief’s law is like that of a robber according to the Rabbis. Nevertheless, there is no difficulty against the Mishna, for

with what are we dealing here? With an armed bandit,

who is a robber,

and it is Rabbi Shimon’s

view, according to which the owners despair in the case of a robber.

And we challenge this:

If so, this is the same as a robber,

and the Mishna has already taught the law of the tax collector, who is a robber?

And we answer:

There are two types of robber.

Come and hear

to resolve the dilemma from that which was taught in a beraita:

“The thief, the robber, and the coercer—if they consecrated them, their consecration is a consecration; and their teruma is teruma, and their tithes are tithe.”

Whose

view does the beraita hold, that both in the case of a thief and in the case of a robber the owners despair?

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

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

Granted, if you say

that Rabbi

says that the thief is like a robber according to Rabbi Shimon,

then one can say that the beraita holds like Rabbi, and

that is why he acquires.

But if you say

that Rabbi

says that the thief is like a robber according to the Rabbis,

then it is difficult:

Whose is this?

Not Rabbi, not Rabbi Shimon, and not the Rabbis?

And we reject the proof: The beraita is speaking

of an armed bandit, and it is Rabbi Shimon’s view.

And we challenge this:

If so, this is the same as a robber,

and the law of a robber has already been stated in the beraita?

And we answer:

There are two types of robber.

Rav Ashi said to Rabba: Come and hear

to resolve the dilemma, how to explain Rabbi’s words:

“For Rabbi taught it to Rabbi Shimon his son,”

Rabbi taught and explained to his son Rabbi Shimon the Mishna at the beginning of the chapter, where it says concerning one who robbed and died, and the stolen object remained with the heirs, that they are exempt from returning it because they acquired it through despair and change of possession. But if the stolen object that remained is something involving responsibility, they must pay.

And Rabbi explained to his son:

“Not specifically something involving responsibility,”

meaning, not only if the stolen object their father left them was land,

but even

if it was

a cow with which one plows

or

a donkey with one driving behind it, they must return it because of the honor of their father,

since everyone sees that they are using an object stolen by their father.

And we infer from Rabbi’s words:

The reason

that the only reason they must return the stolen object is

because of the honor of their father.

If not for the honor of their father,

if it were not because of the honor of their father,

not

would they have been required to return it according to the fundamental law, because they acquired it through despair and change of possession.

It follows that Rabbi holds like Rabbi Shimon, that in every stolen object the owners despair of it. And if so,

infer from this: Rabbi

who says that the thief is like a robber,

says that he is like a robber according to Rabbi Shimon,

that the thief’s law is also like that of a robber, and in both cases the owners despair.

Infer from this!

We learned in the Mishna:

“And likewise a swarm of bees,”

if the owners despaired, these belong to him.

And we raised a question about it:

“What does ‘and likewise’ mean?”

For it is obvious that despair acquires in the case of a swarm of bees, just as it acquires in the case of a garment; what novelty is there in this?

And we answer:

This is what it says: Even a swarm of bees, whose acquisition is rabbinic,

for by Torah law the bees are ownerless, and only by rabbinic law did they enact, because of the ways of peace, that ownership should apply to them.

It might enter your mind to say: Since this one acquires it only by rabbinic law,

since his ownership of the bees is weak, therefore

even

if we did not hear him explicitly say that he despairs, but

also by implication

it could be said that he certainly

despairs,

despairing of the bees that left his possession.

Therefore

it teaches us

the Mishna that specifically

if the owners despaired,

when we know with certainty that they despaired of the bees,

it is not

then permitted to take them. But

if not,

if we did not hear them explicitly despair,

it is not

permitted to take them.

We learned in the Mishna:

“Rabbi Yohanan ben Beroka says: A woman and a minor are believed”

to say, “From here this swarm emerged.”

And we raised a question about it: Are

“a woman and a minor fit to give testimony?”

And how can one rely on their testimony and require the swarm to be returned to that person concerning whom they testify that it is his?

And we answer:

Rav Yehuda said that Shmuel said: With what are we dealing here? For example, when the

the

owners

of the swarm

were chasing after them,

searching for the swarm they had lost even before the woman and the minor testified, so there is an indication that the swarm is his,

and a woman and a minor were speaking unsuspectingly

without intending to testify,

and saying: “From here this swarm emerged,”

and therefore they are believed concerning this.

Rav Ashi said: Speaking unsuspectingly is valid

to testify

only for the testimony of a woman.

For even one who is not fit to give testimony is believed to say concerning a certain man that he died, in order to permit his wife to marry, when he does not state his words as testimony but merely speaks unsuspectingly. For example, one who heard children saying, “Behold, we are going to eulogize and bury a certain man,” may come and testify in court concerning his death on the basis of the children’s words, since the Sages were lenient in this testimony because of the enactment for abandoned wives.

Ravina said to Rav Ashi: And

is it the case that

not

have we found other situations in which one who is not fit to give testimony is believed when he speaks unsuspectingly?

But there is the swarm of bees,

“speaking unsuspectingly”

it is,

for the woman and the minor are believed concerning the swarm of bees despite being disqualified from testimony, because they speak unsuspectingly?

And we answer:

The swarm of bees is different, for its acquisition is rabbinic.

Since the owners’ entire right to them is only rabbinic, they believed one who speaks unsuspectingly [even if his testimony is not true, there is no Torah-level robbery from the true owners]. But in a matter that is by Torah law, we have not found the credibility of speaking unsuspectingly except in the testimony of a woman.

And we challenge this:

And

in a

Torah-level matter, have we not

found the credibility of one who “speaks unsuspectingly”?

But did Rav Yehuda not say that Shmuel said: There was an incident involving a certain man who was speaking unsuspectingly and saying: I remember when I was a child and was carried

—I was riding

on my father’s shoulders, and they took me out of the schoolhouse

and stripped me of my tunic and immersed me,

in a ritual bath because of concern for impurity [since children are accustomed to play in garbage dumps where creeping creatures are found], so that I could

eat teruma in the evening,

after sunset.

And Rabbi Hanina concluded it as follows,

adding to the words of Rabbi Yehuda who said it in the name of Shmuel that the same man also said,

“And my companions kept away from me”

so that they would not make me impure,

“and they would call me: Yohanan, eater of loaves”

of teruma.

And Rabbi elevated him to priesthood,

making him fit to eat teruma,

on the basis of his word,

because he spoke unsuspectingly, despite the fact that in the laws of testimony a person is not believed to testify concerning himself.

It follows that even regarding a Torah-level prohibition there is credibility for one who speaks unsuspectingly? And we answer: Rabbi made him fit only to eat

rabbinic teruma,

such as after the destruction, when the sanctity of the Land was nullified and the teruma is only rabbinic. But in a matter that is by Torah law, we have never found the credibility of one who speaks unsuspectingly.

And we challenge this:

And still,

in a matter that is

by Torah law, have we not

found the credibility of one who speaks unsuspectingly?

But when Rav Dimi came, he said

in the name of

Rav Hana of Carthage.

And some say

that

Rav Aha of Carthage related

the following:

An incident came before Rabbi Yehoshua ben Levi.

And some say

that this is what he related:

An incident came before Rabbi involving a certain child who was speaking unsuspectingly and said: “My mother and I were taken captive among the gentiles.”

And he guarded his mother so carefully that even when

I went out to draw water,

my

thought was upon my mother,

or when I went out

to gather wood,

my

thought was upon my mother,

so that the gentiles would not render her impure.

And Rabbi permitted

his mother

to marry into the priesthood,

making her fit to marry a kohein,

on the basis of his word.

It follows that although there is here a concern for a Torah-level prohibition, lest she had relations with a gentile and became disqualified from the priesthood as a zonah, nevertheless they believed the minor because he was speaking unsuspectingly. And this is difficult for Rav Ashi, who said that credibility for speaking unsuspectingly exists only in the testimony of a woman?

And we answer:

They were lenient regarding a captive woman,

since it is only a mere concern lest she had relations with a gentile and became disqualified from the priesthood. Therefore they believed one who spoke unsuspectingly concerning her. But in general there is no credibility for speaking unsuspectingly concerning a Torah-level prohibition, apart from the testimony of a woman.

We learned in the Mishna:

“But he may not cut off its branch”

with the intention of giving the money. Rabbi Yishmael, son of Rabbi Yohanan ben Beroka, says: He may even cut it off and give the money.

It was taught: Rabbi Yishmael, son of Rabbi Yohanan ben Beroka, says: It is a condition of the court that a

person

may enter his fellow’s field and cut off his fellow’s branch

—a branch of the tree

of his fellow

on which a swarm of bees settled, in order

to save his swarm,

for if he takes them one by one, they will flee,

and he takes the value of his branch

—the owner of the tree collects payment for the damage

from his fellow’s swarm.

And it is a condition of the court that a

person

pour out

his

wine

from his barrel

and save the honey of his

fellow

whose jar of honey cracked, by pouring it into his barrel [for honey is more valuable than wine]

and take

the

value of his wine from his fellow’s honey.

And it is a condition of the court that a

person

unload his wood

from atop his donkey

and load

upon it the

flax of his fellow,

if his donkey died while carrying flax [whose price is higher than that of wood],

and his fellow takes

the

value of his wood from his fellow’s flax.

For with this condition Joshua apportioned the Land to Israel.

Mishna:

One who recognizes his utensils and his books in the possession of another,

Reuven claims concerning utensils and books in Shimon’s possession that they are his and were stolen from him, and he has not yet despaired of them,

and the report of theft concerning him has gone out in the city,

a report went out in the city that utensils and books had indeed been stolen from Reuven. And Shimon claims that he purchased them in the marketplace,

he shall swear to him

the

purchaser, how much he gave.

Shimon shall swear how much he paid for the utensils and books

and take

from Reuven the sum that he paid, and return the utensils and books to him.

The Gemara explains that according to the fundamental law Shimon would have had to return the utensils and books to Reuven without having to return their value to him, since he had not yet despaired of them, and Shimon had not acquired them. Rather, the Sages enacted the “market enactment”: one who purchases an object publicly in the marketplace without knowing that it is stolen must have the owner of the house return to him what he paid, and the owner of the house then collects from the thief. For otherwise a person would refrain from buying and selling in the marketplace.

And if not,

that the report of theft concerning Reuven did not go out in the city,

it is not within his power

to be believed in saying that the utensils and books in Shimon’s possession were stolen from him, because

I say:

Reuven

sold them to

another

person

under pressure,

and this person purchased them from him,

and Shimon purchased them from him, and now money happened to become available to Reuven and he wishes to buy them back.

Gemara:

And we raise it against this:

But if a reputation for theft went out for him in the city, what of it?

What proof is there from this that a theft indeed occurred to him?

Let us be concerned lest he sold them,

perhaps the articles and books were not stolen from him, but rather he sold them,

and he himself is the one who publicized the matter,

and he himself brought out the report of the theft?

And we answer:

Rav Yehuda said in the name of Rav:

It is speaking

of a case where people came

and spent the night

inside his house, and he stood and made a public outcry

he shouted

at night and said: “My articles have been stolen!”

for this is proof that the report is indeed true.

And we object:

All the more so

there is reason to be concerned that

he found a pretext,

that he is taking advantage of the opportunity that people are lodging in his house in order to shout at night, so that they will believe him later when he comes to contest the articles and books that he sold and regretted selling?

And we answer:

Rav Kahana concludes it in Rav’s name

Rav Kahana says that Rav added:

For example,

after he made a public outcry at night, people came and saw

that there was a tunnel breached inside his house, and the people who had spent the night inside his house came out

from the tunnel

with bundles

of articles

on their shoulders, and everyone was saying: “So-and-so’s articles have been stolen!”

And we object:

But perhaps there were articles, but there were no books!?

For they say only that articles were stolen, and from where do we know that books were also stolen?

And we answer:

Rabbi Hiyya bar Abba said in the name of Rabbi Yohanan: For example, they also said books

that so-and-so’s books had also been stolen.

And we object:

But let us be concerned lest they were small,

perhaps the books that they said had been stolen from him were small,

while he is claiming large ones,

whereas the books that he claims were stolen from him are large—that is, they are of an entirely different type? And we answer:

Rabbi Yosei bar Hanina said:

For example,

they said

that everyone was saying:

“The book of so-and-so and the book of so-and-so”

were stolen from so-and-so’s house, and he is claiming those same books from whoever has them in his possession.

And we object:

But perhaps they were old, while he is claiming new ones.

Perhaps the books that were stolen are indeed the same type as the books that are in so-and-so’s possession, but they are not those very books, because the books that were stolen were old and the books that are present are new?

And we answer:

For example, they said

that the people said at the time of the theft:

“These are so-and-so’s articles; these are so-and-so’s books,”

for they saw that the books were new.

And we object:

And did Rav say this

that it is speaking of there having been a tunnel breached inside his house?

But Rav said:

A thief who

came through a tunnel, took articles, and went out is exempt

from returning them.

What is the reason?

Because

he acquired them with his blood.

He acquired them with his blood; that is, since one who comes through a tunnel is liable to death [so that one who kills him is exempt], he is exempt from monetary payments, by virtue of kam lei bid’rabba minei.

And since, if the articles were in the hands of the thieves themselves, they would be exempt from returning them, why should the buyer who bought them from them be liable to return them?

And we answer:

These words apply when he acquired them,

when he came

through a tunnel,

only when the thief entered the house through a tunnel, because

from the outset he placed his life at risk of being killed.

For initially he came intending to be killed, and therefore he is exempt from returning them.

But these,

those people who had spent the night with him,

since they did not place their lives at risk of being killed,

for they did not initially come through a tunnel, but came to spend the night in his house and afterward breached a tunnel in order to flee with the stolen property,

no.

They are not exempt from returning it, for they did not make themselves liable with their lives.

Rava said: They taught this only

that it is necessary for a report to go out that such-and-such books were stolen from him

but

with regard to

a householder who is accustomed to sell

his

articles,

for in his case we are concerned lest he sold his articles and they were not stolen from him.

But a householder who is not accustomed to sell

his

articles ![](pamud.bmp "

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does not need such extensive investigation.

It is not necessary for the report to go so far that everyone says, “Such-and-such a book was stolen from him.”