Bava Kamma 68b (סח:) — the Talmud in English

For Rabbi Elazar said:

Know [that you have a proof]

that ordinarily, theft involves the owners’ despair, for the Torah says: “If he slaughtered or sold it, he shall pay fourfold or fivefold,”

so the Torah imposed the fourfold and fivefold payment for a sale,

which shows that the Torah imposed the fourfold and fivefold payment for a sale,

and

behold,

perhaps the owner did not despair [of recovering it],

and if so, how could the Torah impose this liability on every thief!?

Rather, is it not because we say: Ordinarily, theft involves the owners’ despair?

Thus, Rabbi Elazar too maintains that the Torah imposed liability only after despair.

And we challenge Rabbi Elazar:

Perhaps, even though the owner did not despair,

the Torah imposed liability; and from where does Rabbi Elazar derive a proof from this that ordinarily, theft involves the owners’ despair!?

They said

that the scholars of the academy explained Rabbi Elazar’s position:

It should not enter your mind

that one becomes liable before despair for a sale that accomplished nothing, because the Torah imposed the liability for a sale

analogous to slaughtering

.

Just as with slaughtering, his actions accomplished something [they were effective],

for the thief thereby acquired even the meat through “a change effected by an act,”

so too, with regard to a sale,

the Torah imposed liability only in a case

where his actions accomplished something.

And if

you were to say that the Torah imposed liability for a sale even when it took place

before despair,

then

what did his actions accomplish

, when the sale is not valid, so that it is as though he did not sell it at all!?

We challenge Rabbi Elazar further:

Perhaps

the Torah imposed liability only in a case

where we heard that he had despaired [we heard him express despair] before the sale; and from where can one prove from this that “ordinarily, theft involves the owners’ despair”!?

They said

that the scholars of the academy explained Rabbi Elazar’s position:

It should not enter your mind,

that the Torah imposed liability only in a case where we heard that the owners had despaired, because:

A sale

is

analogous to slaughtering, and the Torah imposed liability for it.

And

just as with slaughtering,

the Torah imposed liability even when he slaughtered

immediately [directly after stealing it]

and before waiting for the owners’ despair,

so too, with a sale,

the Torah imposed liability even when he sold it

immediately

without waiting for the owners’ despair.

He said

in astonishment

to him, Rabbi Yohanan

, to Rabbi Elazar, who maintains that the Torah imposed liability only for a sale that was effective:

Theft of a person—

the Torah states [Deuteronomy 24:7]: “If a man is found stealing a person, one of his brothers, of the Children of Israel, and he enslaves him and sells him, that thief shall die”—

proves [the contrary],

for there is no

there

owners’ despair [since a person does not despair of himself],

which could render the sale an effective sale, and

nevertheless

the thief is

liable

if he sold him!

By inference,

we learn from Rabbi Yohanan’s challenge

that Rabbi Yohanan holds

that the sale of a stolen animal

before despair entails liability

for the fourfold and fivefold payment, even though the sale was ineffective.

The following passage is the third discussion concerning whether despair effects acquisition.

As for

What is Rabbi Yohanan’s position concerning

after despair? Does he hold that despair effects acquisition or not?

Rabbi Yohanan said: He is liable,

and the Gemara proceeds to explain this.

And Reish Lakish said: He is exempt.

Rabbi Yohanan said: He is liable,

because he holds that

his liability

for a sale applies

both before despair,

as explained above, that Rabbi Yohanan disagrees with Rabbi Elazar, who imposes liability only after despair,

and after despair,

because despair does not effect acquisition.

Reish Lakish said: He is exempt,

because he holds that

his liability applies before despair, but after despair, he acquired it,

the thief acquired the stolen property,

and he slaughters his own animal and sells his own animal.

Rabbi Yohanan raised an objection to Reish Lakish

, who holds that despair effects acquisition, from the following Mishna [below, 74b]:

If a thief

stole an animal

and consecrated it,

the thief consecrated the animal [in a manner in which the consecration takes effect, as the Gemara proceeds to explain],

and afterward slaughtered it,

the thief slaughtered the animal, then he

pays the double payment

to the owners, since he stole it before the consecration,

but he does not pay the fourfold and fivefold payment

to the owners, since he slaughtered an animal belonging to the consecrated property; and he does not pay the fourfold and fivefold payment to the consecrated property either.

But

when

did the thief consecrate it?

If we say that he consecrated it before despair,

the thief consecrated it,

does it become consecrated

through the thief’s consecration!?

After all, “

And when a man consecrates his house as sacred,”

the Merciful One said: Just as

“his house”

belongs to him, so too, everything

that

belongs to him

he can consecrate; but a thief cannot consecrate something that does not belong to him.

Rather, it is obvious

that the Mishna is dealing with a case in which the thief consecrated it

after despair,

for even if despair does not effect acquisition, the consecration takes effect either because of a “change of designation”—initially it was non-sacred property, whereas now it is consecrated property—or because of a “change of domain,” as it passed from an ordinary domain to the domain of the Most High.

And if so, it is proven that despair does not effect acquisition [and the consecration takes effect only because of a change of designation or a change of domain], for:

The reason that when he consecrated it

and slaughtered or sold it after the consecration

he does not pay the fourfold and fivefold payment

is

that when he slaughtered it, he slaughtered an animal belonging to the consecrated property,

and not the property of the one from whom it was stolen.

But

if he

did not consecrate

the animal, then if he

slaughtered

it, he

pays the fourfold and fivefold payment

to the one from whom it was stolen, even though the owners had already despaired.

And if it enters your mind that despair effects acquisition, why does he pay

the fourfold and fivefold payment when he slaughtered it after despair!? After all,

he slaughters his own animal and sells his own animal.

It is therefore proven from this Mishna that despair does not effect acquisition, and this presents a difficulty to Reish Lakish!?

He said to him

Reish Lakish to Rabbi Yohanan:

In fact, despair does effect acquisition, and this Mishna is dealing with a case before despair; therefore, if there were no consecration, the thief would be liable for slaughtering it. As for your difficulty—if so, how could the thief consecrate it?—I will say to you:

Here, with what are we dealing:

With a case in which the owners consecrated it while it was in the thief’s possession

before they despaired, and the consecration took effect by virtue of the owners; therefore, when the thief slaughtered it after the consecration, he was exempt from the fourfold and fivefold payment.

And we challenge Reish Lakish’s interpretation:

Does it become consecrated

through the owners when the stolen property is not in their possession, but rather in the thief’s possession!?

But Rabbi Yohanan said:

If one robbed property and the owners had not despaired, both of them

—the robber and the owners—

cannot consecrate it

, this one

—the robber—

because it is not his, and this one

—the owners—

because it is not in his possession!?

And if so, it is impossible to interpret the Mishna as referring to a case in which the owners consecrated it while it was in the thief’s possession, as Resh Lakish interpreted it—!?

They said

the members of the academy, in order to explain the position of Resh Lakish:

He—

Resh Lakish—

holds like

the tanna of the

“scrupulous”,

who maintains that owners can consecrate an item that was robbed or stolen from them, and can effect other applications of sanctity to it, even though the stolen item is not in their possession.

As we learned:

A fourth-year vineyard—which requires redemption in order to eat its produce—would be marked during the Sabbatical year with clods of earth, to indicate that one may benefit from the produce only after its redemption, just as it is possible to benefit from earth; and this was done during the Sabbatical year because the produce is ownerless, and anyone who comes to take may come and take. But during the other six years of the Sabbatical cycle they would not mark the vineyards, since if the concern was for thieves, lest they eat the produce without redemption, there was no need to be concerned about this, for “let him feed it to the wicked man and let him die.” Whereas

the scrupulous

[pious people] would

set aside the money

for the redemption of the fourth-year vineyard,

and

would

say: Everything that is picked

[that has already been picked]

from this

by the thieves,

shall be redeemed with this money,

so as not to cause the thieves to stumble.

This proves that according to this tanna it is possible to redeem produce that is not in the redeemer’s possession, but is in the hands of thieves; and the same law applies that the owners can consecrate it. Resh Lakish holds in accordance with this tanna.

We raise another objection to the interpretation of Resh Lakish, who interpreted the Mishna—“If he stole and afterward consecrated it, he pays double payment”—as referring to a case in which the owners consecrated it while it was in the thief’s possession:

A thief pays double payment only when, at the time he is brought to court, the stolen item is in his possession, as it is stated: “If the theft shall surely be found in his possession, from an ox to a donkey to a sheep, he shall pay double.” But if the thief returned the stolen item to the owners before he was brought to court, and it is no longer in his possession, then the court does not obligate him to pay double payment for the theft—

But

here, when the owners consecrated it while it was in the thief’s possession, it is as though

the principal had returned to the owners,

and the thief should not even pay double payment. Yet in the Mishna we learned that when the owners consecrated it, he is exempt only from the fourfold or fivefold payment, but he remains liable for double payment. And if, as you say, the owners consecrated it, why is he liable—!?

And we answer: This Mishna is referring to a case in which

when

the thief had already

stood

before the court

for judgment

concerning the theft—before the owners consecrated it—and the court had already obligated him to pay double payment. He is no longer exempt from the double payment even if he were to return the principal to the owners.

And we ask:

What are the circumstances

—what was the court’s ruling before the owners consecrated it—!?

If

the court said to the thief: “

Go out and give it to him

the double payment,” this cannot be said, because:

If so,

why specifically: he consecrated

[after the thief stood trial] and afterward slaughtered it, so that he is exempt from the fourfold or fivefold payment?

Even if he did not consecrate it, he should likewise not be liable

for the fourfold or fivefold payment, since the court had said to the thief, “Go out and give it to him”?

For

indeed,

Rava said:

a. If the court said to the thief: “

Go out and give it to him,”

and the thief went and

slaughtered or sold it,

he is

exempt.

What is the reason?

Once the court had finalized

his case

with regard to the matter

[the court had issued a final ruling in his case],

and he slaughtered or sold it, he became a robber

who slaughtered or sold it [since his theft had become known, and he was holding it by force],

and

therefore

a robber does not pay the fourfold or fivefold payment.