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Week 95 - Tuesday - 18 September 2001

BAVA KAMMA: CHAPTER 7: MISHNAH 6

If he was drawing it to bring it out, and it died in the domain of the owner, he is exempt. If he lifted it, or brought it out from the domain of the owner and it died, he is liable. If he gave it as first dues for his son, or to his creditor, to an unpaid custodian and to a borrower, to a paid guardian, and to a hirer, and he was drawing it, and it died in the domain of the owner - he is exempt. If he lifted it, or took it out from the domain of the owner, and it died - he is liable.

Kehati

This mishnah is a continuation of the previous mishnah, and elaborates on the manner in which a thief acquires an object and becomes liable for it.

If he - the thief- was drawing - the ox or the sheep – out - of the domain of the owner, and - the ox or sheep - died in the domain of the owner - before he had managed to take it out, he - the thief - is exempt - since he had not yet acquired it to become liable for it, for drawing does not effect acquisition in the domain of the owner. Most commentaries explain that this means exempt from paying kefel.

Rambam similarly writes: "Whoever steals in the domain of the owner is exempt from kefel, since the stolen object is still in his [the original owner's] possession (Hil. Genevah 20:16). Tosefot Yom Tov, writes: "This implies that he is liable for the principal, and I do not know why" (see Rashi and Hagahot Maharshal).

If he - the thief - lifted - the ox or the sheep, even though he did not yet take it out of the domain of the owner, since lifting up effects acquisition in any place, or brought it out from the domain of the owner - and acquired it by drawing – and - the ox or sheep - died, he is liable - to pay kefel.

If he - the thief - gave it - in the domain of the owner, before he acquired it - as first dues - to the priest - for - the redemption of - his - firstborn – son - instead of five selas, or to his creditor, or gave it - to an unpaid custodian – or - to a borrower, or - to a paid guardian - or - to a hirer, and he - the priest, or the creditor, or the custodian - was drawing it, and it died in the domain of the owner, - the thief - is exempt - since neither he nor those in his stead effected acquisition.

If he - the priest, or the creditor, or the custodian - lifted it - even in the domain of the owner, or took it out from the domain of the owner - thereby acquiring it by drawing, and it died - afterwards - he - the thief- is liable - because of the acquisition by those in his stead (Rashi); and even though a person does not become an agent to perform a transgression, the thief is nevertheless liable in this case, since those in his stead did not know that the object was stolen, but rather thought that it was his. And in a case where the agent does not know that the deed is a transgression, there is agency to perform a transgression (Tosafot).

Other commentators write that the case is one in which the priest, or the creditor, or the custodian, knows that the item was stolen; our mishnah teaches that since the thief had not yet acquired the stolen object, and had not yet given it to the priest, or to his creditor, or to the custodian, if they lifted the stolen object or took it out of the domain of the owner, they are liable, since they performed the act of theft, i.e., the exemption and the liability mentioned in the last section of our mishnah do not apply to the thief, but rather to those to whom the thief gave the stolen object, i.e., the priest, or the creditor, or the custodian. Even though one who steals from a thief is exempt from paying kefel, these are nevertheless liable, since the thief had not yet acquired the stolen object; they are as those stealing directly from the domain of the owner (Rambam, Hil. Genevah 2:16; Maggid Mishneh; see Hasagot Ravad, ibid., who interprets this differently; see Tosefot Yom Tov).

BAVA KAMMA: CHAPTER 7: MISHNAH 7

One may not raise small cattle in Eretz Israel, but one may raise them in Syria and in the wildernesses in Eretz Israel. One may not raise fowl in Jerusalem, because of the sacrifices; nor priests in Eretz Israel because of ritually clean foods. One may not raise swine in any place. A man may not raise a dog unless it is tied on a chain. One may not set nets for doves, unless they are distant thirty ris from an inhabited place.

Kehati

One may not raise small cattle - sheep and goats - in Eretz Israel - because this interferes with settlement of the land, since small cattle destroy crops, but one may raise them in Syria - since we are not as concerned regarding its settlement, and if they destroy other fields there, their owners will pay the damage; "Syria" is the territory of Aram which was conquered by King David, and which was not sanctified with the sanctity of Eretz Israel (see our introduction to Mishnah Dem. 6:11), and in the wildernesses in Eretz Israel - which are far from fields and vineyards.

One may not raise fowl in Jerusalem, because of the sacrifices - since fowl normally peck in refuse, we fear that they may bring the measure of a lentil of a reptile, and defile the sacrifices which are eaten in Jerusalem; nor may priests - raise fowl anywhere - in - Eretz Israel because of ritually clean foods - the terumah which is eaten by the priests, and the purity of which must be maintained; we fear that the fowl may defile it.

One may not raise swine in any place - not even outside Eretz Israel. The Gemara quotes a baraita that the Sages decreed this as the result of a historical occurrence: "When the Hasmonean kings were warring with each other, they would lower dinars to them in a purse each day (those inside would lower over the city walls a purse of dinars from the contributors in the Temple chamber to those outside the wall), and they would raise up to them temidim (the ones on the outside would send up to those on the inside sheep for the daily sacrifices); one day they sent them up a pig... and Eretz Israel quaked over an area of 400 parsah by 400 parsah. At that time they said, Cursed be the man who shall raise swine."

A man may not raise a - bad - dog - which is accustomed to bite (see Tosefot Yom Tov), since it is likely to cause damage or a woman is liable to miscarry for fear of it - unless it is tied on a chain - when people would not be afraid of it. It is permitted, however, to raise a dog in a city close to the border, and to tie it up by day and let it loose by night (a baraita).

One may not set nets for – trapping – doves –for fear of theft: perhaps one will trap doves which are owned by someone, unless they are distant thirty ris - about 4 mil (c. 4 km.) - from an inhabited place.

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