Bava Kamma 68a (סח.) — the Talmud in English

Granted, if you say:

when he sold it

before despair!

is there rootedness in sin? Surely, did he become rooted in sin? The purchaser did not acquire it, since “change of possession” does not acquire an item without despair!?

But has he perhaps sinned further? The buyer did not acquire the animal, since a change of possession does not acquire stolen property without the owner’s despair.

Rather,

necessarily only

after despair is the Torah speaking when it says: the one who sells it is liable. And in this manner he indeed became rooted in sin, since the purchaser acquired it through despair and “change of possession.”

And this beraita—a tannaitic source not included in the Mishna—raises a difficulty against Rav, who holds that the owner’s despair acquires the stolen property. For

And this beraita poses a difficulty to Rav, who holds that despair acquires, for

if it enters your mind that despair acquires

as Rav maintains, then

why does he pay the fourfold and fivefold payments

when he sold or slaughtered it after the owner despaired? After all,

he is slaughtering his own animal and selling his own animal!?

The students of the yeshiva said

to resolve the difficulty:

That which Rabbi Akiva said, “because he became rooted in sin,” means

as Rava said

below, later on this page, in explaining Rabbi Akiva’s statement: he means,

“because he repeated the sin”

that he both stole and slaughtered or sold it.

Here too “

because he repeated the sin”;

and the Torah’s liability for the sale is when it was before despair, while the robber had not yet acquired it so as to be exempt, because “he is slaughtering his own animal and selling his own animal.”

Come and hear that despair does not acquire, from that which was taught in a beraita: It is written, “

and he slaughtered it or sold it,”

and he slaughtered it or sold it”;

just as slaughter is irreversible, so too sale is irreversible.

The initial understanding was to explain as follows: Just as, through slaughter, the animal can never again return to its former state, so too one is liable for a sale only when, through the sale, the theft left the victim’s possession through a change of possession and could never again return from the purchaser.

But

when

does the Torah render one liable for a sale?

Granted, if it was before despair,

then

why is it irreversible? After all, a change of possession without despair does not acquire the item.

After all, a change of possession without the owner’s despair does not acquire the stolen property.

Rather,

necessarily,

after despair

is when the Torah rendered him liable.

And if it enters your mind that it is acquired

through despair alone, then

why does he pay the fourfold and fivefold payments?

After all,

he is slaughtering his own animal,

and

he is selling his own animal!?

And we answer: That which we learned in the beraita, that one is not liable for an irreversible sale, does not mean to exclude a sale that failed to establish the theft in the purchaser’s possession, such that one could prove from this that the case concerns a sale after despair—

rather,

as Rav Naḥman said

in explaining the beraita:

it excludes a case in which he transferred

the theft to the purchaser

for thirty days,

for he is not liable for it, since this is merely a rental and not a sale;

here too,

it excludes a case in which he transferred it for thirty days.

And one can again say that the Torah rendered him liable for slaughter and sale only when it was before despair.

The following objection was raised against Rav, who holds that despair acquires, from a beraita that details the laws of one who steals after a thief:

A.

a.

One stole, and another came and stole it

from him:

The

first

thief pays the double payment, and the

second

pays only the principal

to the first thief.

b.

He stole it and sold it,

and the purchaser acquired it through “change of possession,”

and another came and stole it

from the purchaser:

The

first

thief—who stole it from the owners—

pays the fourfold and fivefold payments

for the theft and sale to the original owners.

And

the

second thief—who stole it from the purchaser and did not sell it—

who stole it from the buyer but did not sell it—

pays the double payment

to the purchaser, since he stole what belonged to him.

c.

He stole and slaughtered it, and another came and stole it

as meat from the thief:

The

first

thief—who stole it from the owners—

pays the fourfold and fivefold payments

for the theft and slaughter to the original owners.

And

the

second thief—who stole the meat from the thief—

who stole the meat from the thief—

does not pay the double payment; rather,

he pays the first thief

the principal

of the meat

only.

And from this beraita the Gemara proves not in accordance with Rav, who holds: “Despair acquires”:

In any event, the middle clause teaches: He stole and sold it, and another came and stole it

from the purchaser;

the first

pays the original owners

the fourfold and fivefold payments

for the theft and sale,

and the second pays the double payment

to the purchaser.

And this poses a difficulty to Rav, for

when

did the first thief sell it?

Granted, if he sold it before despair,

then

why does the second pay the double payment

to the purchaser? After all,

is there anyone who says that a change of possession without despair acquires

the item for the purchaser, such that the second thief should be liable to pay him double!?

Rather, it is obvious

that

after despair

the thief sold it.

And if it enters your mind that despair—

which was in the possession of the first thief—

acquires, why does

the first thief

pay the fourfold and fivefold payments

for the sale? After all,

it is his that he sold [

he is selling his own property ]!?

Furthermore,

there is another difficulty for Rav:

the first clause teaches: He stole, and another came and stole it; the first pays the double payment

to the owners,

and the second pays only the principal

to the first thief.

Since,

the middle clause proves that

after despair—

in the possession of the first thief—

is the case

[the beraita]

and if it enters your mind that despair acquires:

then the

second thief should pay only the principal

to the first thief? After all, the first thief acquired it through despair, and the second thief stole his property; he should pay him double!?

Rather, is it not to be inferred from here that despair does not acquire, and this is a difficulty for Rav,

who holds that despair acquires.

Rava

said

in defense of Rav’s position:

Rav’s position:

Can you really maintain that this is a properly resolved

[do you think that this beraita is sound and not corrupted]? It must necessarily be rearranged—as will be explained below—and then it will no longer pose a difficulty to Rav!?

For

rather, this is what

consider

the latter clause teaches

of this beraita:

The

first thief

slaughtered it, and another came and stole it

as meat from the first thief:

the first pays

the owners

the fourfold and fivefold payments

for the theft and slaughter,

and the second pays only the principal

to the first thief. But this is difficult:

Is there anyone who says,

meaning: Is there any amora who disputes the law of despair as to whether it acquires, and holds that

a change effected in the item,

which the thief effected through slaughter,

does not acquire it!?

Since the first thief acquired the meat through the change, the second thief should indeed have to pay him even the double payment.

Rava concludes his answer:

Rather, the entire

beraita concerns a case

before despair,

and the difficulty from the first clause to Rav is readily resolved.

As for the difficulty you raised from the middle clause:

This too poses no difficulty, since once we have established that the beraita is corrupted, we can resolve it in a manner that does not challenge Rav, and

reverse

the ruling stated in the

latter clause into

the form of the

middle clause, and

the ruling stated in the

middle clause into

the form stated in the

latter clause!

And say this:

The middle clause:

He stole and sold it

before despair,

and another came and stole it

from the purchaser;

the first pays the fourfold and fivefold payments

for the theft and sale,

and the second pays only the principal,

but he does not pay the double payment to the second thief, since it is not his;

for a change of possession without despair

is

not acquired.

The latter clause:

He stole and slaughtered it, and another came and stole it; the first pays the fourfold and fivefold payments, and the second pays the double payment

to the first thief, because

he acquired it

the thief

through a change effected in the item.

Rav Pappa said: If the issue is your difficulty with the latter clause, which is intrinsically perplexing,

If your difficulty is that the final clause is internally perplexing,

never reverse it:

As for the difficulty you raised from the latter clause—“Is there anyone who says that a change effected in the item does not acquire it?”—there is no difficulty, because

the latter clause is the view of Beit Shammai, who say: A change remains in its place,

and the theft is not acquired by the thief through a change effected in the item.

And we ask:

If so—

since there is no intrinsic necessity to reverse the beraita, the middle clause must necessarily be interpreted as referring to a case in which the thief had despaired, as the Gemara proved above— then

the first clause and the middle clause pose a difficulty to Rav,

who holds that despair acquires!? That is, the original difficulty—which the Gemara raised against Rav from the middle and first clauses—returns to its place.

Rav Zevid

said

in answer:

The entire

beraita is

before despair

while the theft is in the thief’s possession, and the difficulty from the first clause is readily resolved.

And

as for the difficulty from the middle clause: If the beraita concerns a case before despair, why does the second thief pay the double payment to the purchaser? After all, a change of possession without despair does not acquire the item. Say to you:

What are we dealing with here?

With a case in which the owners despaired while it was in the purchaser’s possession

[when it was in the purchaser’s possession], and the purchaser acquired it even without a change of possession, so that the thief is liable to pay him the double payment—

but they did not despair while it was in the thief’s possession

[when it was in the thief’s possession],

which would have constituted despair and a change of possession,

so that he would acquire the theft and be exempt from the fourfold and fivefold payments.

And do not say

to prove that this is not in accordance with Rav, and because this difficulty will occur to you: Why did the beraita depict the second thief’s liability for double payment specifically in a case where he stole from a purchaser, and not in a case where he stole from the first thief? Say, to resolve this, that it is

because we require

in order for the second thief to become liable

despair and a change of possession, and therefore, in the case of the first thief, it is impossible to find a situation in which the one who stole from him would be liable for double payment. But if despair effects acquisition, as Rav maintains, then it is indeed possible to find a case of double payment by a second thief even where he stole from the first thief—for example, where the owner despaired of recovering the animal while it was in the second thief’s possession.

Do not say this.

Rather, even by despair alone, a thief acquires the stolen item

if he had despaired

.

Rather,

the beraita therefore depicts the second thief’s liability for double payment specifically where he stole from a second purchaser, because

it is impossible to find a case in which both of them pay [

you cannot find liability for both of them]: both the

first thief

fourfold and fivefold payment for the sale,

and

both the

thief

the

second

double payment,

except in this manner

—only in a case where the despair occurred while the item was in the possession of the second thief, but not while it was in the possession of the first thief, who did not acquire it through despair and is therefore liable for fourfold and fivefold payment for its sale.

It was stated:

a. One who sells an animal that he stole after the owners despaired of recovering it is liable according to both Rav Naḥman and Rav Sheshet, because, in their view, “despair” does not effect acquisition. Thus, at the time of the sale, the animal still belonged to the one from whom it was stolen. And since his sale caused it to belong to the purchaser by means of despair and a “change of possession,” he is liable according to both of them.

b. But

one who sells

the animal that he stole

before the owners despaired,

and his sale was ineffective, since a change of possession without despair does not effect acquisition—Rav Naḥman and Rav Sheshet disagree concerning this law:

Rav Naḥman said: He is liable.

Rav Sheshet said: He is exempt.

The Gemara explains the basis of their dispute:

Rav Naḥman said: He is liable:

because

the Merciful One states, “or he sold it”

that he must pay

fourfold and fivefold payment,

and he did sell it [

and here, he sold it ];

it makes no difference whether it was before the owners despaired,

when his sale was ineffective,

or whether it was after the owners despaired,

when his sale was effective.

Rav Sheshet said: He is exempt:

because, in his view,

his liability

for the thief’s sale applies specifically

after the owners despaired, when his actions were effective [

his actions were effective ], since the purchaser acquired the stolen item through despair and a change of possession,

but before the owners despaired, when his actions were ineffective [

his sale was ineffective ], then he

is not liable

for fourfold and fivefold payment, because

we require a similarity to slaughter, where his actions were effective,

since even the purchaser acquired the meat through a “change resulting from an action.”

Rav Sheshet said: From where do I derive this [

from where did I learn it ]—that the Torah rendered one liable only for a sale that was effective? From this

as it is taught:

Rabbi Akiva said: Why did the Torah say that one who slaughters or sells must pay fourfold and fivefold payment? Because he became entrenched [

put down roots ]

in sin.

But

when

in what manner did he become entrenched in sin?

If you say: Before the owners despaired, is there entrenchment?

But a change of possession without despair certainly does not effect acquisition.

Rather, is it not

necessarily that it was

after the owners despaired,

when he became entrenched in sin by removing the item from the owners’ possession? It follows that the Torah did not render him liable when he sold it before the owners despaired.

Rava said:

That which Rabbi Akiva said, “because he became entrenched in sin,” means

because he repeated the sin,

as explained earlier in the Gemara.

Come and hear

another beraita from which it can be learned that the Torah rendered one liable only for an effective sale:

It is written: “

and he slaughtered it or sold it,”

indicating that Scripture juxtaposed sale to slaughter, in order to teach:

Just as slaughter cannot be reversed,

since it is impossible to restore the animal to life,

so too, a sale that cannot be reversed,

because the sale has been consummated.

But

when

has the sale been consummated and can no longer be reversed by the purchaser?

If you say: Before the owners despaired, why can it not be reversed?

But a change of possession without despair does not effect acquisition!?

Rather, after the owners despaired,

when the sale was effective because of despair and a change of possession.

And conclude from this: The liability

for a sale

is only after the owners despaired

alone

that it applies.

Rav Naḥman interpreted it

explained it

as referring to Rav Naḥman—

who maintains that a sale is effective even before the owners despaired, and even though the sale can be reversed—this beraita: What the beraita says, “a sale that cannot be reversed,” does not come to exclude a “sale that is not consummated” and can be reversed. Rather, it teaches you:

to exclude a case where he transferred it to him for thirty days,

which is not a sale at all, but merely a rental.

And

the Gemara proves that

Rabbi Elazar also holds

like Rav Sheshet:

his liability

for a sale applies only

after the owners despaired,

when the sale was consummated!