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Week 96 - Friday - 28 September 2001

BAVA KAMMA: CHAPTER 9: MISHNAH 12

If he gave the money to the men of the watch, and he died - the heirs cannot take out of their hands, as it is written, "Whatever any man gives the priest, it shall be his" (Num. 5:10) If he gave the money to Jehoiarib and the guilt-offering to Jedaiah - he has done his duty. The guilt offering to Jehoiarib and the money to Jedaiah: if the guilt offering is in existence, the members of Jedaiah's shall sacrifice it; and if not, he returns and brings another guilt offering. For one who brought what he had stolen before he brought his guilt offering, has done his duty. If he brought his guilt offering before he brought what he had stolen, he has not done his duty. If he gave the principal, but did not give the homesh - the homesh does not hinder.

Kehati

Our mishnah is a continuation of the previous mishnah, and elaborates on the case of a person who steals from a convert, swears to him, and then dies. It has already been taught in other places that the priests were divided into 24 watches, with each watch (mishmar) serving for one week in the Temple, in rotating order (see Taan. 2:6). This is the source for the law in the previous mishnah that the thief pays principal and homesh to the priests in that watch.

If he - the person who stole from the convert - gave the money - the principal and the homesh - to the men of the watch - the priests serving in the Temple during that week, and he - the thief - died - before giving them the guilt-offering to sacrifice, the heirs - of the thief - cannot take - the money - out of their - the priests' - hands, as it is written, "whatever any man gives the priest, it shall be his" - the Gemara explains that we learn from our mishnah that the money atones for half; since the thief derived benefit by having given the money to the priests, the heirs cannot take it from them (see Bartenura and Tosefot Yom Tov).

If he - the thief - gave the money to Jehoiarib - who was the first watch of the priests (there was a special name for each and every watch -see I Chron. 24:7), and - afterwards gave - the guilt-offering to Jedaiah - who was the second watch, he has done his duty - i.e. the requirement for his atonement, as will be explained below: that one who brings the object he stole before he brings his guilt-offering achieves his atonement, and each watch retains what it received.

But if he gave - The guilt-offering to Jehoiarib and the money to Jedaiah - i.e., he reversed the order and brought the guilt-offering to the first watch, and afterwards gave the money to the second watch: if the guilt-offering is in existence - if it had not been sacrificed by the members of Jehoiarib's watch before he gave the money, the members of Jedaiah's shall sacrifice it - and the money and the guilt-offering go to Jedaiah; and if not - i.e. if the members of Jehoiarib's watch had already sacrificed it before he gave the money to Jedaiah's watch, he returns and brings another guilt-offering - since he did not fulfill his obligation with the guilt-offering he gave to Jehoiarib's watch, For the person who brought - to the priests - what he had stolen - the money, before he brought his guilt-offering, has done his duty - i.e. the requirement for his atonement; but if he brought his guilt-offering before he brought what he had stolen, he has not done his duty - as it is written, "The restitution for guilt which is made shall be the Lord's, even the priest's; besides the ram of atonement, whereby atonement shall be made for him"; we learn from the words "whereby atonement shall be made" (in the future tense) that at the time that he returned the "guilt," i.e., the stolen object, to the priest, atonement had still not been made (Gemara).

If he - the thief - gave the principal - to the priests, and similarly, if he gave it to the party from whom the object had been stolen, but did not give the homesh - before he came to sacrifice the guilt-offering, the homesh does not hinder - the sacrificing of the guilt-offering, but he is obligated to bring it afterwards, because even though the homesh does not prevent the atonement, the thief is nevertheless obligated to pay it after the atonement (Rambam, Hil. Gezelah 8:13; see Tosefot Yom Tov).

BAVA KAMMA: CHAPTER 10: MISHNAH 1

If one steals and feeds his children, or he left it for them - they are exempt from paying. But if it were a thing in which there is surety, they are obligated to pay. One may not change money, either from the till of the customs gatherers, or from the pouch of the collectors, and we do not take charity from them. But he takes from his house or from the marketplace.

Kehati

Our mishnah deals with a thief who fed his children from what he stole or bequeathed it to them, and whether they have to pay. It also deals with people who are assumed to be thieves, and teaches that it is forbidden to derive benefit from their money, which is assumed to be stolen.

If one steals and feeds his children - from what was stolen, - or - he left it - the stolen object - for them - his children, and they consumed it after the death of their father; since the stolen object no longer exists, they - the children - are exempt from paying - compensation for it, because they did not steal it, they have it only as a debt of their father's, and the movable property which he left is not mortgaged to a creditor.

But if it - what their father had bequeathed to them - were a thing in which there is surety - i.e., real estate, although they had already consumed the stolen object (Gemara), they are obligated to pay - since their father's property had already become mortgaged for it during his lifetime (Rashi). The Gemara explains that our mishnah refers to a case in which the heirs consumed the stolen object after the owners had despaired of recovering it. If, however, they had eaten it before despair (ye'ush), they are obligated to pay, even from the movable property. If, however, the stolen object is still in existence in their possession, even if the owner despaired, they are required to return it. Even though if the thief had sold the stolen object and the owner had despaired, the purchaser is not required to return it, since he acquired it by ye'ush and the change of ownership, heirs nevertheless are required to return it, since ownership by an heir is not the same as ownership by a buyer (according to Rava, and the law is in accordance with his opinion). The stolen object is not acquired on the strength of ye'ush alone, without a change of ownership.

Concerning the final law, Rambam writes that subsequent to the enactment of the Gaonim that a creditor may collect even from the movable property of heirs, even for a loan not secured by a bond, the heirs are obligated to pay, whether they ate or not, whether the owner despaired or not, whether from the land or the movable property which their father bequeathed them (Hil. Gezelah 5:6). The Gemara further explains that Rabbi expounded this mishnah to his son Rabbi Shimon as follows, "But if it - what their father stole - were a thing in which there is surety" - such as real estate, or even a cow with which he plows, or an ass which he drives, since the stolen object is recognizable in public, and everyone knows that it belongs to the party from whom it was stolen, they are obligated to return it, out of respect to their father. According to the above explanation of the mishnah, however, in accordance with the opinion of Rava, the heirs are obligated to return the stolen object by law, and not only out of respect for their father, even when the public are unaware that the item has been stolen (Hameiri).

One may not change money - e.g. a sela or a dinar for perutot, either - from the till of the customs gatherers, or from the pouch of the - tax - collectors - since it is assumed that their money is stolen. The Gemara explains that the mishnah refers to a tax collector who does not have an allotment, i.e., he was appointed by the government to collect taxes, but without a fixed rate, and he takes whatever taxes he wishes; or, it refers to a self-appointed tax collector, who was not appointed by the government, and who demands taxes illegally; similarly, it refers to a tax collector who takes more than the amount determined by the law of the land; the Sages therefore resolved that all their money is presumed to be stolen, hence it is forbidden to change money from their till, for it is forbidden to benefit from a stolen object; and we do not take charity from them - for the reason mentioned above; furthermore, by doing so the hand of transgressors would be strengthened, since they would think that charity atones for their theft (Hameiri). In the case, however, of "a tax decreed by the king, who said that he should take one third, or one fourth, or a fixed amount, and he appointed an Israelite tax collector to collect this portion for the king, and it is known that this person is trustworthy and does not add anything to what was decreed by the king, he is not assumed to be a thief, since the law of the land is the law" (Rambam, Hil. Gezelah 5:11).

But he takes - it is permitted to take for charity or to change money - from - the money which the customs collector or the tax collector has in - his house - since these coins are not from his theft, but from his other affairs, or from the marketplace - if he has money there, since everything which the customs collector does not take from the customs-money till, or the tax collector from the tax pouch, is permitted, because they do not give out the money from customs or taxes elsewhere, out of fear of the government (Rabbeinu Yehonatan in Shitah Mekubetzet). The Gemara quotes a baraita that if he owed perutot to the customs collector in the amount of half a dinar, but he has no perutot, then he may give him a gold dinar and receives change of half a dinar in perutot, even from the till of the customs collectors, since this is regarded as rescuing the money from them.

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