Bava Kamma 68a — the Talmud in English

Granted:

when he sold it

before despair ![](pamud.bmp "

")

is there rootedness—and is it really rootedness in sin? But surely the purchaser did not acquire it, for “change of possession” does not acquire 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 what the Torah said: the one who sells it is liable, and because in this manner he indeed became rooted in sin, since the purchaser acquired it through despair and “change of possession.”

And from this beraita there is a difficulty against Rav, who holds that despair acquires, for

and if it enters your mind that despair acquires

as Rav holds, then

why does he pay fourfold and fivefold payment

when he sold it or slaughtered it after he despaired, for

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

They said

the members of the academy, to explain:

This that Rabbi Akiva said, “because he became rooted in sin,” means

as Rava said

below, later on this page, in explaining Rabbi Akiva’s words, that his intention is to say: “

because he repeated the sin”

for he stole and also slaughtered it or sold it.

Here too “

because he repeated the sin”;

and the Torah’s liability for selling is before despair, and the robber has still not acquired it so as to be exempt, because “he is slaughtering his own and he is selling his own.”

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

and he slaughtered it or sold it,”

and he slaughtered it or sold it”;

just as slaughtering is irreversible, so too, a sale that is irreversible.

And it entered our minds to explain: Just as with slaughtering the animal no longer returns to what it was, so too, one is liable for a sale only when through the sale the theft left the robbed person’s possession through a change of possession, and it will no longer return from the purchaser.

But

when

did the Torah make him liable for selling?

Granted, before despair,

if so,

why is it not irreversible? Surely a change of possession without despair does not acquire.

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

Rather,

necessarily

after despair

the Torah made him liable.

And if it enters your mind: acquisition

through despair alone, then

why does he pay fourfold and fivefold?

For surely

he is slaughtering his own,

and

he is selling his own!?

And we answer: This which we learned in the beraita, that one is not liable for an irreversible sale, does not mean to exclude a sale that did not succeed in establishing the theft in the purchaser’s possession, so that you would prove from this that we are dealing with after despair—

rather,

as Rav Naḥman said

to explain the beraita:

excluding one who transferred

the theft to the purchaser

for thirty days,

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

here too,

excluding one who transferred it for thirty days.

And once again one may say that the Torah made him liable for slaughtering and selling only before despair.

It was objected to Rav, who holds “despair acquires,” from a beraita detailing the laws of one who steals after a thief:

A.

a.

He 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 and sold,

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

and another came and stole it

from the purchaser:

The

first

thief—the one who stole from the owners—

pays fourfold and fivefold payment

for the theft and sale to the original owners.

And

the

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

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

pays double payment

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

c.

He stole and slaughtered, and another came and stole it

as meat from the thief:

The

first

thief—the one who stole from the owners—

pays fourfold and fivefold payment

for the theft and slaughtering to the original owners.

And

the

second thief—the one who stole the meat from the thief—

who stole the meat from the thief—

does not pay double payment, but

pays to 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”:

It was taught, at any rate, in the middle clause: He stole and sold it, and another came and stole it

from the purchaser;

the first pays

to the original owners

fourfold and fivefold payment

for the theft and sale,

and the second pays double payment

to the purchaser:

And from this there is a difficulty against Rav, for

when

did the first sell it?

Granted, he sold it before despair,

if so,

why does the second pay double payment

to the purchaser? Surely

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

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

Rather, it is obvious that

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 fourfold and fivefold payment

for the sale? Surely

it is his that he sells [

he is selling his own]!?

And furthermore,

there is a difficulty against Rav:

for it was taught in the first clause: He stole, and another came and stole it; the first pays double payment

to the owners,

and the second pays only the principal

to the first thief.

Since—surely from the middle clause it is proven that

the middle clause proves that

after despair—

in the possession of the first thief—

we are dealing

with [the beraita],

and if it enters your mind that despair acquires:

if so, the

second thief—why does he pay only the principal

to the first thief? Surely the first acquired it through despair, and the second thief stole what belonged to him, so he should pay him double!?

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

who holds that despair acquires.

He said

and explained

Rava

Rav’s position:

And can you really maintain that this is a properly resolved [beraita] [Do you think that this beraita is properly settled and not corrupted]!? Necessarily, reverse it—as will be explained below—and then there will no longer be a difficulty against Rav!?

? 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 against Rav!?

But

rather, this

consider

which was taught in the final clause

of this beraita:

The

first thief

slaughtered it, and another came and stole it

as meat from the first thief:

the first pays

to the owners

fourfold and fivefold payment

for the theft and slaughtering,

and the second pays only the principal

to the first thief; but is there not a difficulty:

And is there anyone who says, meaning: Is there any amora who disputes concerning the law of despair, whether it acquires,

holding that

a change in the object itself,

which the thief effected through slaughtering it,

does not acquire!?

Since the first thief acquired the meat through the change, by law the second thief should pay even double payment to the first thief.

And Rava concludes his answer:

Rather, the entire

beraita deals

with before despair,

and the difficulty from the first clause against Rav is straightforwardly resolved.

And as for what is difficult to you from the middle clause:

This too is not difficult, since it is corrupted, we have to settle it in a manner that does not create a difficulty against Rav, and

reverse

the law stated in the

final clause to

the manner of the

middle clause, and

the law stated in the

middle clause to

the manner explained in the

final clause!

And say it thus:

The middle clause:

He stole and sold

before despair,

and another came and stole it

from the purchaser,

the first pays fourfold and fivefold payment

for the theft and sale,

and the second pays only the principal,

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

because a change of possession without despair

is

not acquired.

The final clause:

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

to the first thief, because of

his acquisition

the thief

through a change in the object itself.

Rav Pappa said:

If it is because of your difficulty concerning the final clause, that it is intrinsically puzzling,

never reverse it: As for what is difficult to you about the final clause—“Is there anyone who says that a change in the object itself does not acquire?”—this is not difficult, for

the final clause is the opinion of Beit Shammai, who say: “A change remains in its place”

the final 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 in the object itself.

And we ask:

If so—

since there is no intrinsic necessity to reverse the beraita, the middle clause must necessarily be interpreted as dealing with a case in which there was despair in the thief’s possession, as the Gemara proved above— and if so,

the first clause and the middle clause are difficult against Rav,

who holds that despair acquires!? Meaning: The difficulty returns—the difficulty that the Gemara raised against Rav from the middle clause and the first clause—into its place.

He said

and explained

Rav Zevid:

The entire

beraita

is before despair

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

And as for what is difficult to you from the middle clause: If the beraita deals with before despair, then why does the second thief pay double payment to the purchaser, when a change of possession without despair does not acquire? I say to you:

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:

In what case are we dealing?

With owners who despaired while it was with the purchaser [

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

and they did not despair while it was with the thief [

when it was in the thief’s possession]

so that there was despair and change of possession,

through which he would acquire the theft and become exempt from fourfold and fivefold payment.

And do not say

to prove that Rav’s words are not so, and because this difficulty would confront you: why did the beraita depict the liability of the second thief for double payment specifically in a case where he stole from a buyer, and not where he stole from the first thief, and say, to resolve it, that it is

because we require—

in order for the second thief to become liable—

despair and a change of domain, and therefore, with regard to the first thief, you cannot find a case in which the one who steals from him becomes liable for double payment; but if despair acquires, as Rav holds, then it is indeed possible to find double payment with a second thief also in a case where he stole from the first thief, such as where the owner despaired while it was in his 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 abandonment of hope effects acquisition, as Rav maintains, then it is indeed possible to find liability for double payment by the second thief even when he stole from the first thief—for example, when the owner despaired of recovering the item while it was in the second thief's possession—

Do not say so;

rather, even with despair alone he likewise acquires it when he is a thief,

had he despaired—

Rather,

therefore the beraita depicts the liability of the second thief for double payment specifically when he stole from a second buyer, because

you cannot find both of them liable [that you will not find liability for both of them]: both the

that is, there is no case in which both are liable: both the

first thief

for four and five for the sale,

and both the

the

thief

the

second

for double payment,

except in this manner,

only in a situation in which the despair was with the second thief and not with the first, who did not acquire it through despair and was liable for four and five for the sale.

It was stated:

A. One who sells the animal that he stole after the owners’ despair is liable, according to both Rav Nahman and Rav Sheshet, because “despair” does not acquire it in their view, and it follows that at the time of his sale it belonged to the one robbed; and since his sale was effective in making it belong to the buyer by means of despair and a “change of domain,” he is liable according to both of them.

B. But

one who sells

the animal that he stole

before despair,

and his sale was not effective, for a change of domain without despair does not acquire it—the matter was disputed by Rav Nahman and Rav Sheshet:

Rav Nahman said: He is liable.

Rav Sheshet said: He is exempt.

And the Gemara explains the reasoning of their dispute:

Rav Nahman said: He is liable:

because

“or he sold it”

the Merciful One said

that he must pay four and five,

and here, he sold it [and here he sold it];

that is, he sold it;

it makes no difference whether before despair

when his sale was not effective,

or whether after despair

when his sale was effective.

Rav Sheshet said: He is exempt:

because in his view

his liability

of the thief for the sale is specifically

after despair, for his actions were effective [his actions were effective], for the buyer acquired the stolen item through despair and a change of domain,

that is, his actions were effective, because the buyer acquired the stolen item through abandonment of hope and transfer of possession.

but before despair, when his actions were not effective [his sale was not effective], for then

that is, when his sale was ineffective,

he is not liable

for four and five, and because

we require it to be analogous to slaughter, that his actions were effective,

for even the meat he acquired through “a change of action;”

Rav Sheshet said: From where do I say this [from where did I learn it], that Torah made one liable only for a sale that was effective—from this

that the Torah made one liable only for a sale that was effective? From this source,

as it was taught:

Rabbi Akiva said: Why did Torah say that one who slaughtered and sold must pay four and five? Because he became rooted [struck roots]

that is, he struck roots

in sin.

And

when

in what manner did he become strengthened in sin,

if you say before despair, is there becoming rooted

for a change of domain without despair certainly does not acquire it?

Rather, is it not so that necessarily

that

it is after despair,

when he became rooted in sin by removing it from the owners’ possession; thus, Torah did not make him liable when he sold it before despair.

Rava said:

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

because he repeated the sin,

as is explained in the Gemara above.

Come and hear

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

It is written: “

and he slaughtered it or sold it,”

for Scripture compared a sale to slaughter, in order to teach:

just as slaughter cannot be reversed,

for it is impossible to restore it to life,

so too, a sale that cannot be reversed,

for the sale was effected.

And

when

was the sale effected and can it no longer be taken back from the buyer?

If you say before despair, why can it not be reversed,

for a change of domain without despair does not acquire it!?

Rather, after despair,

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

And infer from this: the liability

for a sale

is after despair

alone

it is.

He explained it

interpreted it

Rav Nahman—who holds that a sale is effective even before despair, and even though he can return the purchase—to the beraita: that which the beraita said, “a sale that cannot be reversed,” does not come to exclude “a sale that is not effected” and can be reversed, but rather to tell you:

who maintains that a sale is effective even before the owners' abandonment of hope, and even though the sale can be reversed, as referring to the beraita: When the beraita says "a sale that cannot be reversed," it does not intend to exclude "a sale that is not completed" and can be reversed. Rather, it means to tell you:

excluding one who transferred it to him for thirty days,

for this is not a sale, but merely a rental.

And

the Gemara proves that

Rabbi Elazar too holds

like Rav Sheshet:

his liability

for a sale is only

after despair,

when the sale was effected!