Bava Kamma 118b (קיח:) — the Talmud in English

Rava said:

What is the reason of Rav Ḥisda—

who holds that theft without the owners’ knowledge is more severe than theft with the owners’ knowledge, for according to his view, in the case of theft with the owners’ knowledge, in order to fulfill the obligation of restitution it is sufficient for the owners to count the flock, whereas in the case of theft without the owners’ knowledge, it is not sufficient for the owners to count the flock; rather, they must know that the stolen item was returned?

And Rava explains:

Since it has learned to take the roads,

since the stolen animal has learned to leave the flock, from now on it requires more careful guarding. And since the owners did not know that it had been stolen, they would not know to take care of it and guard it properly. But if it was stolen with the owners’ knowledge, returning it is effective once the owners count the flock, since the owners knew that it had been stolen and returned, and from then on they will take care with it.

And did Rava really say this

—that in the case of theft with the owners’ knowledge, restitution is achieved when the owners count the flock after it was returned?

But Rava said: If one saw his fellow lift a lamb from his flock [

a person who saw his fellow lift a lamb from his flock in order to steal it],

and he shouted at him and the thief threw it down [

and the owner raised his voice at him, and the thief threw it down],

and he did not know

the owner

whether he returned it,

whether it returned to the flock,

or whether he did not return it, and it died

the lamb

or was stolen—

the thief is liable

the thief

for it.

Is it not

the case

even though he counted

the flock?

And we reject this:

No,

it is a case

where he did not count,

and therefore the thief remains liable for the theft.

And did Rav really say this

—that the owners must at least know the number of sheep in their possession?

But Rav said: If he returned it

the thief

to the flock

of the owner

in the wilderness—

he is exempt,

even though the owners are unaware, and there is no count, since the owners did not count the flock.

And we answer:

Rav Ḥanan bar Abba said: Rav concedes with regard to marked animals,

since the lamb is recognizable when it is stolen. And the shepherd recognizes it when it is added to his flock, even in the wilderness, when he did not count them.

Shall we say

that the dispute between the amoraim

is like the dispute between tanna’im,

like the dispute between the tanna’im?

As we learned in a beraita:

One who steals a lamb from a flock, or a sela from a purse

of the owners—in order to fulfill the obligation of restitution,

he must return it to the place from which he stole it; this is the statement of Rabbi Yishmael.

Rabbi Akiva says:

In order to fulfill the obligation of restitution,

the owners’ knowledge is required,

so that they know that the stolen item was returned.

They initially understood

the dispute as follows:

Everyone accepts the ruling of Rabbi Yitzḥak,

and no one disputes the law that he stated.

For Rabbi Yitzḥak said: A person is accustomed to feel for his purse at every moment,

and as soon as a sela is missing from his purse, he knows of it. Likewise, immediately after the thief returns it, we say that the owner counted the coins in his purse and knows that the theft was returned.

Is it not

the tanna’im

with regard to the sela

that he stole

with the owners’ knowledge,

as the owners knew that it had been stolen,

and it is the dispute between Rav and Shmuel!

The question is whether, when the theft occurred with the owners’ knowledge, the owners’ knowledge is required for the restitution or not.

And we reject this:

No,

the tanna’im dispute

with regard to a lamb

that was stolen

without the owners’ knowledge,

of the owners,

and it is the dispute between Rav Ḥisda and Rabbi Yoḥanan.

The tanna’im are in dispute: Rabbi Yishmael, who says that he must return it to the place from which he stole it, follows Rabbi Yoḥanan, who said that in the case of theft without the owners’ knowledge, even a count by the owners is unnecessary; it is sufficient to return the item to its place. And Rabbi Akiva, who says that the owners’ knowledge is required for restitution, follows Rav Ḥisda, who said that in the case of theft without the owners’ knowledge, the owners’ knowledge is required for the restitution.

Rav Zevid said in the name of Rava: In the case of a bailee who stole from the owners’ domain—

everyone agrees with Rav Ḥisda

that the owners’ knowledge is required for the restitution, for the reason explained: Since the stolen lamb learned to leave the flock, from then on it requires more careful guarding. And since the owners did not know that it had been stolen, they would not know to take care of it and guard it properly.

But here,

where Rabbi Akiva and Rabbi Yishmael dispute, it is a case

of a bailee who stole from his own domain,

since the lamb was in his possession for safekeeping, and he stole it from his own possession for himself. And they dispute whether

returning it to the place from which he stole it [

that is, to his domain, where he had guarded it for the owners]

is sufficient.

Rabbi Akiva holds:

When the bailee became a thief,

his safeguarding ended,

and he was no longer trusted by the owners. Since he stole it without their knowledge, the owners’ knowledge is required for the restitution; the knowledge of the bailee alone is insufficient.

And Rabbi Yishmael holds: His safeguarding has not ended,

and he is still considered the owners’ bailee; it is sufficient if he returns it with his knowledge.

Shall we say,

perhaps,

a count

—that the owners counted their flock and learned that the stolen item was in their possession—

exempts

the thief from liability, thereby fulfilling the obligation of restitution; this is

a dispute between tanna’im.

As it was taught: One who robs another and conceals the money in the account,

meaning that after some time the robber purchased an item from the victim, and when he gave him the money, he added the stolen funds to it and concealed them in the account, because the robber was embarrassed to say to the victim, “Here is what I stole from you.”

One teaching states: He has fulfilled

the robber’s obligation of restitution.

And another teaching states: He has not fulfilled

the obligation of restitution.

They initially understood

the dispute between the tanna’im as follows:

Everyone

—all the tanna’im who dispute—

accepts the ruling of Rabbi Yitzḥak, who said: A person is accustomed to feel for his purse at every single moment,

and as soon as money is taken from him, he knows of it.

Is it not

that the tanna’im

disagree about this:

The one who says: He has fulfilled—

holds: A count exempts,

and since he counts his money every moment, it is sufficient for him to return the money without the owners’ knowledge, since the owners will count their money and know that this money is in their possession.

And the one who says: He has not fulfilled—

holds: A count does not exempt!

Rather, the owners must know of the theft and of the restitution. Therefore, returning the stolen item without the owners’ knowledge is ineffective.

And ultimately,

they said

that there is no need to explain the dispute between the tanna’im in this manner; rather, it can be explained as follows:

If we hold

that

in accordance with Rabbi Yitzḥak,

the dispute between the tanna’im can be explained as follows:

everyone

—all the tanna’im who dispute—

agrees that a count

by which the owners count and learn that the stolen item is in their possession

exempts

the robber from liability and thereby fulfills the obligation of restitution.

Rather,

only

with regard to Rabbi Yitzḥak do they disagree,

namely, whether a person is accustomed to feel for his purse at every single moment.

One

accepts the ruling of Rabbi Yitzḥak, that a person regularly feels for his purse. Therefore, it is unnecessary to notify the owners of the return of the stolen property, since they will certainly count their money immediately at that time and know that the returned money is in their possession.

And the other does not accept the ruling of Rabbi Yitzḥak,

and it is not certain that the owners will count their money at that time. Therefore, they must be notified of the return of the stolen property in order to be released from liability.

And if you wish, say

that another explanation is possible:

Everyone accepts the ruling of Rabbi Yitzḥak,

that a person is accustomed to feel for his purse at every single moment.

And it is not difficult

to reconcile the teachings that contradict one another, for they can be explained as follows:

This

teaching, which says that he fulfilled the obligation through returning the money without the owners’ knowledge, speaks of a case

where he counted it and placed it in his purse,

meaning that the robber counted the money and placed it in the victim’s purse. Since the money is in the victim’s purse, the victim certainly knew of it, because a person is accustomed to feel for his purse at every moment, as Rabbi Yitzḥak said.

And that

teaching, which says that the owners’ knowledge is required for returning the stolen money, speaks of a case

where he counted it and placed it in his hand,

meaning that the robber counted the money and placed it in the victim’s hand. It is possible that the victim placed it in his chest and did not count it, and did not know that the stolen property had been returned to him.

And if you wish, say

that it can be explained as follows:

Both this and that

—both teachings—speak of a case

where he counted it and placed it in his purse,

meaning that the robber counted the money and placed it in the victim’s purse.

Rather,

this

teaching, which says that the owners must know of the return of the stolen money, speaks of a case

where he has

the victim

other coins in his purse,

and he does not know how much money is in his purse and will not notice that the stolen money was returned to him.

This

teaching, which says that the owners’ knowledge is not required for returning the stolen money, speaks of a case

where he does not have

the victim

other coins in his purse,

and when he counts the money in his purse, he will know that the stolen money was returned to him.

Mishna:

The Mishna details several things that one may not purchase, out of concern that they may be stolen.

One may not purchase from shepherds wool, milk, or young animals,

because of the concern that they stole them from the flock of the owner entrusted to their care.

Nor

may one purchase

from fruit watchmen

in gardens and orchards

wood and fruit,

out of concern that they are stolen.

But one may purchase from women woolen garments in Judea, linen garments in the Galilee, and calves in the Sharon,

since in Judea the women made woolen garments, in the Galilee they made linen garments, and in the Sharon they raised calves; and they sell them with the knowledge of their husbands.

And all of them,

all those women who sell woolen garments in Judea, linen garments in the Galilee, or calves in the Sharon,

who say

to the purchasers

to conceal

and hide what they bought—

it is prohibited

to purchase from them, because such items have the presumptive status of stolen property.

But one may purchase eggs and chickens from anywhere

and from anyone, and we are not concerned that they stole them. However, even in these cases, if the seller tells them to conceal the items, it is prohibited to purchase from him.

Gemara:

The Sages taught: One may not purchase from shepherds neither goats nor young goats, neither shorn wool nor detached wool,

since the wool was pulled from the ewe little by little, making it appear that they stole it.

But one may purchase from them

garments

that have been sewn, because they are theirs,

since even if they stole the wool, they acquired it for themselves through a change, and now it belongs to them.

And one may purchase from them

from the shepherds

milk and cheese in the wilderness,

since it is not customary for the owner to go there and take them, and the shepherd took them.

But

one may not purchase milk and cheese from them

in an inhabited area,

because it is customary to bring them to the owner’s house.

And one may purchase from them

from the shepherds

four or five sheep,

since their absence is noticeable in the flock, and the shepherd cannot evade the owner by telling him that a wolf devoured them.

It is likewise permitted to purchase from the shepherds

four or five shorn animals,

since their absence is noticeable,

but not two sheep or two shorn animals.

Rabbi Yehuda says:

Sheep

that are domesticated

and accustomed to remain near the house

one may purchase from them,

since the owner knows their number. But sheep

that are wilderness animals,

whose number the owner does not know,

one may not purchase from them.

The general rule is: Anything that the shepherd sells and the owner notices—

one may purchase from them;

but if

the owner does not

notice

notice it

in the shepherd who sold it—

one may not purchase from them.

The Master said: One may purchase from them

from the shepherds

four or five sheep, and four or five fleeces.

We raised an objection:

Now, if it may be inferred that we purchase four

[from them], if so,

is it necessary to state five

for him? It is obvious that if the owner notices the loss of four, all the more so does he notice the loss of five; why, then, did the tanna need to state this?

Rav Hisda said:

The tanna’s intention is that it is permitted to purchase from a shepherd when he sells

four

sheep

from among five.

If he had only five sheep in his flock and sold four of them, it is permitted to take them from him, because he would not steal such a large number from such a small flock.

Some say, Rav Hisda said:

The tanna’s intention is that it is permitted to purchase from the shepherd

four

sheep

from a small flock, and five

sheep

from a large flock.

We challenge this:

This matter itself,

the words of the beraita themselves,

are difficult:

On the one hand,

you said: “Four or five sheep, and four or five fleeces,”

that it is permitted to purchase from shepherds, indicating that only a quantity of at least

four or five—

not

is it permitted

three—

not

may one take from them.

On the other hand,

come and hear the latter clause: “But one may not”

take from shepherds

two sheep,

indicating that

three we do purchase,

we purchase them from them.

We answer:

It is not difficult: Here,

the statement in the beraita indicating that one may take even three sheep from shepherds refers

to a healthy flock,

in which the owner considers the sheep significant and pays attention to them;

here,

the statement in the beraita indicating that one may take only four sheep from them refers

to emaciated sheep,

which are not significant to the owner, and to which he does not pay attention. Therefore, he notices their absence only when four are missing.

We learned in a beraita:

Rabbi Yehuda says:

Sheep

that are accustomed to the house may be purchased from them,

but sheep

that are accustomed to the wilderness may not be purchased from them, and so forth.

It was asked of them:

Does

Rabbi Yehuda take his position with regard to the first clause

of the beraita, in which the first tanna permitted purchasing four or five sheep from them,

and stringently,

with Rabbi Yehuda coming to say that under no circumstances may one purchase sheep accustomed to the wilderness from them, even in a large quantity;

or perhaps with regard to the latter clause

of the beraita

does he take his position,

with regard to Rabbi Yehuda’s statement,

and leniently?

We explain: Is the question whether Rabbi Yehuda

takes his position with regard to the first clause and stringently, saying

that the first tanna stated in the first clause:

“One may purchase from them four or five sheep,”

and concerning this Rabbi Yehuda said that

this applies

to sheep

that are accustomed to the house, but

sheep

that are accustomed to the wilderness—

even four or five may not

be purchased from them?

Or perhaps

Rabbi Yehuda’s statement

takes its position with regard to the latter clause and leniently, saying

that the first tanna stated in the latter clause:

“But one may not

purchase from them

two sheep or two fleeces,”

and concerning this Rabbi Yehuda said that

this applies

to sheep

that are accustomed to the wilderness, but

sheep

that are accustomed to the house—

may one even purchase two?

We resolve this from the following:

Come and hear:

As it is taught

in another beraita:

Rabbi Yehuda says: One may purchase

sheep

that are accustomed to the house from them, but one may not purchase from them

sheep

that are accustomed to the wilderness.

And in every place,

even in the wilderness,

one may purchase from them

a quantity of

four or five sheep.