Bava Kamma 114b (קיד:) — the Talmud in English

And it is established for us,

the Gemara below explains that Rabbi’s intention is that the thief’s legal status is

that of a robber according to Rabbi Shimon.

In both cases the owners despair of recovering the item, and Rabbi did not mean that the thief’s status is that of a robber according to the Rabbis, who maintain that the owners do not despair.

The fundamental discussion: Rabbi says: I say: A thief is like a robber.

It was asked of them:

Does Rabbi

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

that the thief’s legal status is that of a robber according to the Rabbis, who maintain that the owners do not despair,

and they do not acquire

meaning that neither the thief nor the robber acquires the stolen property?

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

that in the case of a thief as well, the owners despair, just as they do in the case of a robber according to Rabbi Shimon,

and they acquire it,

meaning that both the thief and the robber acquire the stolen property through the owners’ despair?

Come and hear:

We learned in our Mishna:

“If tax collectors took his donkey.”

It is clear from the Mishna that both when the tax collector is a robber and when the armed bandit is a thief, the owners despair.

And one can raise a difficulty:

Whose view is this?

According to whose opinion does the Mishna hold?

If it is the opinion of the Rabbis, there is a difficulty concerning the robber.

If it is the opinion of Rabbi Shimon, there is a difficulty concerning the thief.

Granted, if you say that Rabbi means that the thief is like a robber according to Rabbi Shimon,

and acquires the property,

then the Mishna can be explained as follows:

Whose opinion is this?

It is Rabbi’s.

The Mishna holds in accordance with Rabbi, who maintains that in both the case of a thief and that of a robber the owners despair, and

therefore they acquire it,

meaning that they acquire the stolen property.

But if you say

that Rabbi

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

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

and they do not acquire it,

then the difficulty concerning the Mishna remains:

Whose opinion is this? It is not Rabbi,

as according to him the owners do not despair either in the case of a thief or in that of a robber;

and it is not Rabbi Shimon,

as according to him the owners despair only in the case of a robber and not in that of a thief;

and it is not the Rabbis,

as according to them the owners despair only in the case of a thief and not in that of a robber, whereas our Mishna states that the owners despair both in the case of a thief and in that of a robber?

The Gemara rejects the proof: In reality, Rabbi maintains that the thief’s status is that of a robber according to the Rabbis. Nevertheless, there is no difficulty concerning the Mishna, because

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

who is a robber,

and it is Rabbi Shimon’s opinion,

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

And the Gemara raises a difficulty:

If so, this is identical with a robber,

as the Mishna has already taught the law concerning a tax collector, who is a robber.

And the Gemara answers:

There are two types of robber.

Come and hear

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

“A thief, a robber, or one who forcibly seizes property: If they consecrated the property, their consecration is valid; and their teruma is teruma, and their tithes are tithe.”

Whose opinion is this?

According to whose opinion does the beraita hold, given that the owners despair both in the case of a thief and in that of a robber?

If it is the opinion of the Rabbis, there is a difficulty concerning the robber.

If it is the opinion of Rabbi Shimon, there is a difficulty concerning the thief.

Granted, if you say

that Rabbi

means that a thief is like a robber according to Rabbi Shimon,

then one can say that the beraita holds in accordance with Rabbi, and

therefore they acquire the property.

But if you say

that Rabbi

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

there is a difficulty:

Whose opinion is this?

It is neither Rabbi’s, nor Rabbi Shimon’s, nor the Rabbis’?

The Gemara rejects the proof: The beraita is speaking

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

And the Gemara raises a difficulty:

If so, this is identical with a robber,

as the beraita has already stated the law concerning a robber.

And the Gemara answers:

There are two types of robber.

Rav Ashi said to Rabba: Come and hear

to resolve the dilemma concerning how to explain Rabbi’s statement:

“When 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 states that when one who robbed another died and the stolen property remained with his heirs, they are exempt from returning it, because they acquired it through the owner’s despair and a change of possession. But if the stolen property that remained is an item involving responsibility, they must pay.

And Rabbi explained to his son:

“Not specifically an item involving actual responsibility,”

meaning that this does not apply only when the stolen property their father left them was land;

“rather, even”

if it was

“a cow with which he plows,”

or

“a donkey, with him driving behind it, they must return it, for the sake of their father’s honor,”

as everyone sees that they are using an item stolen by their father.

And we infer from Rabbi’s words:

The reason

that they are obligated to return the stolen property is solely

for the sake of their father’s honor.

If not for their father’s honor,

if not for their father’s honor,

not

would they have been required to return it as a matter of strict law, because they acquired it through despair and a change of possession.

It follows that Rabbi holds like Rabbi Shimon, that in every case of robbery the owners despair of recovering the stolen property. Therefore,

conclude from this: Rabbi

who says that a thief is like a robber means that he is like a

robber according to Rabbi Shimon,

that the legal status of a thief is also that of a robber, and in both cases the owners despair.

Conclude from this!

We learned in the Mishna:

“And likewise, a swarm of bees,”

if the owners despaired, it belongs to its finder.

And we inquire:

What is the meaning of “and likewise”?

For it is obvious that despair effects acquisition in the case of a swarm of bees, just as it does in the case of a garment; what novelty is the Mishna teaching?

And the Gemara answers:

This is what it is saying: Even a swarm of bees, whose acquisition is by rabbinic ordinance,

as by Torah law the bees are ownerless, and it was only by rabbinic enactment, for the sake of the ways of peace, that ownership was established with regard 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 therefore tenuous,

even

if we did not hear him explicitly say that he was despairing, but merely heard him speaking

without specific intent,

we might nevertheless say that he certainly

despairs,

despairing of the bees that have left his possession.

Therefore,

the Mishna teaches us

that specifically

if the owners despaired,

meaning that 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 say that they were despairing,

it is not

permitted to take them.

We learned in the Mishna:

“Rabbi Yohanan ben Beroka says: A woman or a minor is trusted

to say, ‘From here this swarm emerged.’”

And we inquire: Is it really the case that

a woman and a minor are fit to testify?

How can one rely on their testimony and require that the swarm be returned to the person concerning whom they testify that it belongs to him?

And the Gemara answers:

Rav Yehuda said that Shmuel said: Here, with what are we dealing? For example, the

the

owners

of the swarm

were pursuing it

and searching for the swarm they had lost even before the woman and the minor testified, so there is a basis for assuming that the swarm belongs to them,

and a woman and a minor speak without specific intent,

without intending to testify,

and say: “From here this swarm emerged,”

and therefore they are trusted with regard to this matter.

Rav Ashi said: Speaking without specific intent is valid

as testimony

only with regard to the testimony of a woman.

Even one who is not fit to testify is trusted to say that a certain man is dead, thereby permitting his wife to marry, when he does not state his words as testimony but merely speaks without specific intent. For example, if a person heard children saying, “We are going to eulogize and bury so-and-so,” he may come and testify in court concerning the man’s death on the basis of the children’s words. The Sages were lenient with regard to this testimony because of the enactment concerning abandoned wives.

Ravina said to Rav Ashi: And

is it the case that

not

have we found other circumstances in which one who is not fit to testify is believed when speaking without specific intent?

But what of a swarm of bees? “

Speaking without specific intent”

it is,

as a woman and a minor are believed with regard to a swarm of bees despite being disqualified from testimony, because they speak without specific intent?

And the Gemara answers:

The case of a swarm of bees is different, as its acquisition is by rabbinic law.

Since the owners’ entire right to the bees is only by rabbinic law, the person who speaks without specific intent was believed [even if his testimony is untrue, this does not involve Torah-level robbery from the true owners]. But with regard to a matter governed by Torah law, we have found no reliability for one who speaks without specific intent, other than in the testimony of a woman.

And the Gemara raises a difficulty:

And

with regard to a matter governed by

Torah law, is it not

the case that we have found reliability for one who speaks without specific intent?

But Rav Yehuda said that Shmuel said: There was an incident involving a certain man who was speaking without specific intent and saying: “I remember when I was a child and was being carried

I was riding

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

and stripped me of my garment and immersed me,

in a ritual bath, out of concern for impurity [because children commonly played in refuse heaps where creeping creatures were found], so that I would be able

to eat teruma in the evening,

after sunset.

And Rabbi Hanina concludes the account in this manner,

adding to the words of Rav Yehuda in the name of Shmuel that the man also said:

“And my companions kept away from me,”

so that they would not render me impure;

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

of teruma.

And Rabbi promoted him to the status of priesthood,

qualifying him to eat teruma

on the basis of his word,

because he had spoken without specific intent, even though under the laws of testimony a person is not trusted to testify concerning himself.

It follows that even with regard to a prohibition under Torah law there is reliability for one who speaks without specific intent. And the Gemara answers: Rabbi qualified him only to eat

rabbinic teruma,

for example, after the Destruction, when the sanctity of the Land had lapsed and teruma was only rabbinic law. But with regard to a matter governed by Torah law, we have never found reliability for one who speaks without specific intent.

And the Gemara raises a difficulty:

And still,

with regard to a matter that is

governed by Torah law, is it not

the case that we have found reliability for one who speaks without specific intent?

But when Rav Dimi came, he said

in the name of

Rav Hana Kartigena.

And some say

that

Rav Aha Kartigena related

the following account:

An incident came before Rabbi Yehoshua ben Levi.

And some say

that this was the account he related:

An incident came before Rabbi involving a certain child who was speaking without specific intent and said: “My mother and I were taken captive among the gentiles.

I was so vigilant concerning my mother that even when

I went out to draw water,

my

thoughts were focused on my mother,

or when I went out

to gather wood,

my

thoughts were likewise focused on my mother,

so that the gentiles would not render her impure.”

And Rabbi permitted

his mother

to marry into the priesthood,

qualifying her to marry a priest

on the basis of his word.

Here, too, there is concern for a Torah prohibition, lest she have had relations with a gentile and thereby become disqualified from marrying a priest as a zonah; nevertheless, they believed the minor because he was speaking without specific intent. This is a difficulty for Rav Ashi, who said that speaking without specific intent is reliable only in the testimony of a woman.

And the Gemara answers:

They were lenient in the case of a captive woman,

because this is merely a concern that she may have had relations with a gentile and thereby become disqualified from the priesthood. Therefore, they believed one who spoke without specific intent in her case. But generally, speaking without specific intent is not reliable with regard to a Torah prohibition, except in the testimony of a woman.

We learned in the Mishna:

“But he may not cut off his branch”

in order to pay the owner its value. Rabbi Yishmael, son of Rabbi Yohanan ben Beroka, says: He may even cut it off and pay the owner its value.

It was taught in a beraita: Rabbi Yishmael, son of Rabbi Yohanan ben Beroka, says: It is a stipulation of the court that a person may

a person

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

a branch from the tree

belonging to his fellow

on which a swarm of bees has settled, in order

to save his swarm,

since if he were to take the bees one by one, they would 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 stipulation of the court that a person may

a person

pour out

his

wine

from his barrel

and save his fellow’s honey

for his fellow

whose jug of honey cracked, by pouring it into his own barrel [since honey is more valuable than wine],

and take

the

value of his wine from his fellow’s honey.

And it is a stipulation of the court that a person may

a person

unload his wood

from his donkey

and load

onto it

his fellow’s flax,

if his donkey that was carrying flax died [as the flax is more valuable than the 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 books in the possession of another,

Reuven claims that the utensils and books in Shimon’s possession belong to him and were stolen from him, and that he has not yet despaired of recovering them,

and the theft became publicly known in the city,

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

he must swear to him

the

purchaser how much he paid.

Shimon must swear how much he paid for the utensils and books,

and he takes

that amount from Reuven and returns the utensils and books to him.

The Gemara explains that as a matter of strict law Shimon would have to return the utensils and books to Reuven without requiring him to reimburse their value, since Reuven had not yet despaired of recovering them and Shimon had not acquired them. However, the Sages enacted the “marketplace ordinance,” that when someone purchases an item publicly in the marketplace without knowing that it is stolen, the owner must reimburse him for what he paid, and the owner then collects the money from the thief. Otherwise, a person would refrain from engaging in commerce in the marketplace.

But if not,

if the theft did not become publicly known in Reuven’s city,

he has no credibility

and is not believed to say that the utensils and books in Shimon’s possession were stolen from him, because

I say:

Reuven

sold them to

another

person

under financial pressure,

and this person purchased them from him,

meaning that Shimon bought them from that person, and now Reuven has obtained money and wishes to buy them back.

Gemara:

And we raised the following discussion:

But once a report of theft has spread concerning him in the city, what of it?

What proof is there from this that a theft in fact occurred in his possession?

Perhaps he sold them,

perhaps the utensils and books were not stolen from him at all, but rather he sold them,

and he himself is the one who spread the report?

And he himself generated the rumor of the theft?

And we answer:

Rav Yehuda said that Rav said:

This is referring to a case

such as 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 utensils have been stolen!”

For this is proof that the report was indeed true.

And we challenge this:

All the more so

there is reason to suspect that

he found a pretext,

that he took advantage of the opportunity created by people lodging in his house to shout at night, so that they would believe him later when he came to challenge the ownership of the utensils and books that he had sold and then regretted selling.

And we answer:

Rav Kahana concludes it in the name of Rav

—Rav Kahana says that Rav added:

Such as

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

that a tunnel had been dug inside his house, and the people who had spent the night inside his house emerged

from the tunnel

carrying bundles

of utensils

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

And we challenge this:

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

For they said only that utensils had been stolen; from where do we know that books had also been stolen?

And we answer:

Rabbi Hiyya bar Abba said that Rabbi Yohanan said: Such as where they also said that there were books

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

And we challenge this:

But perhaps they were small ones,

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

while he is claiming large ones,

whereas the books he claims were stolen from him are large—in other words, they are an entirely different type? And we answer:

Rabbi Yosei bar Hanina said:

Such as where they

said

that everyone was saying:

“So-and-so’s particular book and so-and-so’s particular book

were stolen from so-and-so’s house,” and he is claiming those very books from the person in whose possession they are found.

And we challenge this:

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

Perhaps the books that were stolen were indeed of the same type as the books in the possession of the other person, but they are not the very same books, because the books that were stolen were old, whereas the books now in his possession are new?

And we answer:

Such as where they said

that at the time of the theft the people said:

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

as they saw that the books were new.

And we challenge this:

Did Rav really say this,

that the case involves a tunnel that had been dug inside his house?

But Rav said:

A thief who

comes through a tunnel, takes utensils, and leaves is exempt

from returning them.

What is the reason?

Because

he acquired them at the cost of his blood.

He acquired them with his blood, meaning that since one who comes through a tunnel is liable to be put to death [and one who kills him is exempt], he is exempt from monetary payment under the principle that where one is liable for a more severe punishment, he is not liable for the monetary obligation as well.

And since if the utensils were in the possession of the thieves themselves, they would be exempt from returning them, why should the person who purchased them from them be liable to return them?

And we answer:

This applies only 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 exposed himself to being killed.

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

But these,

those people who had spent the night in his house,

since they did not expose themselves to being killed,

because they did not initially come through a tunnel, but came to spend the night in his house and only afterward dug through a tunnel in order to escape with the stolen property,

no.

They are not exempt from returning it, since they did not place their lives at risk.

Rava said: They taught

that it is necessary for a report to spread that particular books were stolen from him

only

in the case of

a householder accustomed to selling

his

utensils,

because in his case there is concern that perhaps he sold his utensils and they were not stolen from him.

But a householder who is not accustomed to selling

his

utensils

does not require all this investigation.

It is not necessary for the report to spread to the extent that everyone says, “So-and-so’s particular book and so-and-so’s particular book were stolen from him.”