Sanhedrin 72a (עב.) — the Talmud in English

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And indeed, the halakha is that when he has liability for the death of the homeowner, he is liable for accidents—

and it follows from this that the utensils entered the thief’s domain from the moment of the theft.

And Rav learned from this [according to Rava] that when he does not have liability for the death of the homeowner, he likewise acquired the utensils and is not obligated to return them. Rather, he must pay their value; but this is certainly unnecessary, because “he acquired them through their monetary value.”

For when he has liability for the death of the homeowner and the utensils were accidentally destroyed—

he is liable; evidently, they are in

the thief’s

domain;

the utensils are considered to be there—

here too,

when he does not have liability for the death of the homeowner—

they are in his domain;

they belong to him, and he is not obligated to return them.

This is Rav’s reasoning. But Rava himself disagrees and maintains that this “test” cannot exempt him from returning the utensils.

For this thief is not actually a bailee; rather, the Torah imposed upon him the status of a bailee. And the status of a bailee that the Torah imposed upon him is to his detriment: Just as when a bailee takes control of another’s property—that is, he uses a deposit in a manner involving robbery and without permission—he cannot exempt himself from payment if the item is subsequently destroyed by accident, because at the moment he took control of it he acquired the deposit with regard to liability, and if it was accidentally destroyed, it was destroyed in the bailee’s domain; so too, this thief cannot exempt himself, even if the item was accidentally destroyed.

However, to go further on the basis of his liability for accidents and say that the thief acquired the utensils—is this conceivable? The Torah did not transfer ownership of the utensils to him so that they would belong to him, and he is certainly obligated to return them if they are still intact, as it is stated: “He shall restore the stolen property that he stole.”

And if you would say [according to the Maharsha]: Ultimately, he is liable for accidents, which indicates that the utensils belong to him. What difference does it make? A borrower is also liable for accidents, and nevertheless he does not acquire the deposit and is obligated to return it if it was not accidentally destroyed. And just as with a borrower “all the benefit is his,” meaning that the deposit was given to him for his use and therefore he is liable even for accidents, so too, with this thief “all the benefit is his,” and therefore he pays if the item was accidentally destroyed.

And how could a robber be in a worse position than a borrower?!

That is not so.

Rav’s reasoning is incorrect.

For the Merciful One placed him in its domain

only with regard to the utensils being in the thief’s domain

with regard to liability for accidents,

so that he is obligated to pay if they are accidentally destroyed;

but with regard to acquisition,

as to ownership of the utensils, the Torah did not transfer ownership to him, because

they remain in the domain of their owner;

they belong to the homeowner,

just as is the case with a borrower,

for although a borrower is liable for accidents, it would never occur to anyone to say that he acquires the deposit.

The Gemara proves from our Mishna that this is not in accordance with Rav’s opinion.

We learned: “One who entered through a tunnel and broke a barrel,”

if

he has liability for the death of the homeowner—

he is liable; if he does not have liability for the death of the homeowner—

he is exempt.—

It follows that

the reason is that he broke it,

and then,

when he does not have liability for the death of the homeowner,—

he is exempt; but

if he

took

—

he is not

exempt, and he is obligated to return the utensils.

The same law applies

that

even if he took it as well,

he would be exempt.

And the fact that it teaches: “he broke the barrel,”

is not intended to imply that if he took it he would be liable; rather,

it teaches us

another novel point:

, that when he has liability for the death of the homeowner, even if he also broke it, he is liable.

The Gemara asks:

Is this obvious?

What novelty is there in this? After all, if he broke it,

he is a tortfeasor!

It is obvious that he is liable.

The Gemara answers:

This teaches us

that the novel point it comes to teach is

that even

if the thief broke it

unintentionally,

he is likewise liable.

The Gemara asks:

What does this teach us?

What novelty is there in this? Is it meant to teach that

a person

who causes damage is

always forewarned,

even if he caused the damage unintentionally? There is no novelty in this, because—

we already learned it:

It is an explicit Mishna in tractate Bava Kamma. We learned:

A person is always forewarned, whether

he caused damage

unintentionally or intentionally, accidentally or willingly;

the Torah distinguished between unintentional and intentional acts, and between accident and volition, only with regard to other areas of Torah law, whereas a person who causes damage is always liable.

What, then, is the novelty? Rather, why did the Mishna state “he broke the utensils”? Was it not in order to infer: “But if he took them, he is obligated to return them”? This is difficult for Rav.

It is difficult.

Indeed, our Mishna is difficult to reconcile according to Rav. [The Gemara did not say “tiyuvta,” which signifies a complete refutation, because Rav can explain it with difficulty, as we explained. And the Mishna did not state explicitly: “If he took it, he is obligated to return it.”]

The Gemara now challenges Rava’s statement that if he took them, he is obligated to return them.

Rav Beivi bar Abaye raised an objection:

We learned in a beraita:

One who steals a purse

containing coins

on Shabbat—

is liable

to return it, and the rule of “he is exempt because of a more severe liability” does not apply here, even though he is liable to be executed by stoning for desecrating Shabbat by carrying the purse from a private domain into a public domain,

since he became liable for

returning the

stolen property

from the moment he lifted the purse in the owner’s domain, and that occurred

before he came to the prohibition of Shabbat,

for he becomes liable at the moment he carries it from one domain to another. Therefore, the rule of “he is exempt because of a more severe liability” does not apply here, because at the time of the theft he was not liable for a capital offense.

However, if he did not acquire the stolen property through the act of lifting, but through pulling, and he pulled it out from the owner’s domain into the public domain—how did he do this? He

was dragging

the purse

and exiting—

he is exempt

from payment,

since the prohibition of theft and the prohibition carrying a stoning penalty

for desecrating Shabbat

come simultaneously

at the moment he carries it from the owner’s domain into the public domain.

Thus, because of the capital liability, he is exempt from returning the purse and the coins, even if they still exist. This is difficult for Rava.

The Gemara answers:

And the halakha is:

what the beraita taught—that he is exempt—refers, according to Rava, to a case where they no longer exist,

as he threw them into the river,

so that they were lost. But if they still exist, he is indeed obligated to return them.

The Gemara relates an incident:

To

Rava had rams stolen from him through a tunnel.

Thieves tunneled their way to Rava and stole his rams. Eventually, the thieves

returned them to him

and gave them back, but

he did not accept them.

Rava did not want to accept them, even though according to his own opinion they belonged to him, since the thieves had not acquired them, because

he said: Since this matter came from Rav’s mouth,

and according to Rav’s opinion the thieves had acquired them and were not required to return them.

The Torah stated: “If the thief is found tunneling… he does not have liability for the death of the homeowner. If the sun has risen upon him” he has liability for the death of the homeowner.

The following are two beraitot.

The tanna of the second beraita interprets the verses according to their plain meaning: “If the sun has risen upon him—he has liability for the death of the homeowner.” But the tanna of the first beraita expounds juxtaposition, linking the two verses and deriving: “He does not have liability for the death of the homeowner if the sun has risen upon him.”

The Sages taught: “He does not have liability for the death of the homeowner if the sun has risen upon him,”

and one may challenge this:

Did the sun rise only upon him?!

Rather,

let us explain:

If the matter is as clear to you as daylight that he has no peaceful intention toward you

and has come to kill you, he does not have liability for the death of the homeowner;

kill him!

But if not,

if it is not as clear to you as daylight and you are uncertain about the matter,

do not kill him!

Another beraita was taught:

We learned another beraita:

“If the sun has risen upon him, he has liability for the death of the homeowner,”

and one may challenge this:

Did the sun rise only upon him?!

Rather,

let us explain it as follows:

If it is as clear to you as daylight that he has peaceful intentions toward you,

and he is compassionate, so that even if you stand up against him he will not kill you—he has liability for the death of the homeowner;

do not kill him!

But if not,

and it is not as clear to you as daylight and you are uncertain about the matter—

kill him!

The Gemara asks:

They are contradictory.

The two beraitot contradict each other: The first said that when one is uncertain, do not kill him, whereas the second said that when one is uncertain, kill him.