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Week 96 - Shabbat - 29 September 2001

BAVA KAMMA: CHAPTER 10: MISHNAH 2

If tax collectors took his ass and gave him another ass, if robbers robbed his garment and gave him another garment - then these are his, since the owners despaired of them. One who rescues from a stream, or from troops, or from robbers: if the owner despaired, these are his. And similarly a swarm of bees: if the owner despaired, these are his. Rabbi Yohanan ben Heroka said, A woman or a minor are believed to say, "This swarm came out from here." And he may go into the field of his fellow to save his swarm. And if he caused damage - he pays what he damaged; but he may not cut off his branch, on condition of paying its value. Rabbi Yishmael, the son of Rabbi Yohanan ben Beroka, says, He may even cut if off and he pays its value.

Kehati

Our mishnah is a continuation of the previous mishnah, and teaches in what ways it is permissible to benefit from the property of tax collectors and robbers.

If tax collectors took his ass and gave him another ass - and similarly, if robbers robbed his garment and gave him another garment - even though the ass or the garment which he received from the tax collector or from the robbers was stolen, these are his, since the owners - of the ass or the garment have certainly - despaired of them - and since they gave them to him in return for his ass and his garment, this is like a sale, so that he acquired them by ye'ush and the change of ownership (Rashi; Rambam; Hameiri; Bartenura; see Kesef Mishneh on Rambam, Hil. Gezelah 5:10). Nonetheless, if he is a pious person and strict with himself, and he does not want to retain property which is not his, he takes them from them in any event and returns them to the original owners (a baraita quoted in the Gemara).

One who rescues from a stream - which rose and flooded his fellow's property, or from troops, or from robbers - who robbed his fellow: if - he knows that - the owner despaired – of saving his property, these are his - in such cases, he acquired them through the ye'ush. But if he did not know that they had despaired, he is obligated to return them.

The Gemara distinguishes between one who saves property from Jewish robbers, and one who saves it from non-Jewish robbers. If a person saves something from Jewish robbers, even if he does not know that the owner has despaired, the object is his, because the owner normally despairs; if, however, he knows that the owner has not despaired, then he is obligated to return the object. One who saves property from non-Jewish robbers, on the other hand, is obligated to return it, since the owner normally does not despair; if, however, he knows for a certainty that the owner has despaired, it is his. It follows from this that the second part of the mishnah, "or from robbers," refers only to non-Jewish robbers, since we explained "if the owner despaired" as meaning, if it is known to him that the owner despaired, while the first part of the mishnah, "if robbers robbed his garment," refers to Jewish robbers, since the mishnah itself explains: "since the owners despaired of them," i.e., it may be assumed that the owners despaired (Rashi, Bartenura). Concerning non-Jewish robbers, why do we not say that the owner may be assumed to have despaired? This is because the owners know that non-Jewish judges order restoration by the thief on the basis of supposition alone, even if there are no witnesses and clear proofs, and so the owners do not despair; concerning Jewish robbers, however, since Jewish judges force one to pay money only on the basis of witnesses and clear proofs, we may assume that the owners despair (Gemara, Rambam, Bartenura).

And similarly a swarm of bees - which left his fellow's hive, and entered into his domain (Tiferet Yisrael): if - he knows that - the owner despaired - of recovering them, these are his - our mishnah teaches that even though a person acquires such a swarm only by Rabbinic ordinance, nevertheless they are his only if the owner has despaired, but they are not his as long as he does not know whether the owner has despaired (Gemara).

Rabbi Yohanan ben Beroka said, A woman or a minor are believed to say, "This swarm came out from here" - and the person within whose domain it is found is required to return it to its owner. The Gemara explains that this refers to a case in which the owner was chasing after the swarm, and a woman or a minor happened to be talking, and said, "This swarm came out from here." Although a woman or a minor is not fit to give testimony on monetary matters, since one only acquires a swarm of bees by Rabbinic ordinance, they are believed with respect to it.

When a swarm of bees left his domain and entered his fellow's field - he - the owner of the swarm is permitted to go into the field of his fellow to save his swarm. And if he caused damage - when entering to save his swarm - he pays what he damaged - to the owner of the field; but he may not cut off his branch (sokho) - the branch of his fellow's tree, upon which the swarm came to rest, in order to move it to his domain (the meaning of sokho is a bough, as in, "And all the people likewise cut down every man his bough [sokhoh]" [Jud. 9:49]), even - on condition of paying its value - for the branch.

Rabbi Yishmael, the son of Rabbi Yohanan hen Beroka, says, He may even cut off - the branch of his fellow, and he pays its value - the Gemara quotes a baraita that Rabbi Yishmael, the son of Rabbi Yohanan ben Beroka, holds that it is a condition imposed by the Court that a person may go into the field of his fellow and cut off the branch of his fellow in order to save his swarm, and the person who sustained the damage receives compensation for his branch from the swarm of his fellow, for this was one of the conditions made by Joshua when apportioning the land as an inheritance for Israel. The law is not in accordance with Rabbi Yishmael.

BAVA KAMMA: CHAPTER 10: MISHNAH 3

If one recognizes his utensils or his books in the possession of another, and report of the theft had spread in the city - the buyer swears to him how much he paid, and he takes; and if not - he is not able, for I can say: he sold them to another, and this one brought them from him.

Kehati

If one - A - recognizes - finds - his utensils - or - his books in the possession of another - B, and he brings witnesses to the effect that they are his, and A claims that they were stolen from him, and that he has been searching for them all the time, i.e., he has not despaired of recovering them, while B claims that he purchased them in the marketplace, and report of the theft - of utensils and books from him - had spread in the city - before he had found them in B's possession, the buyer - B, who claims that he purchased the utensils or the books in the marketplace - swears to him how much he paid - for them, and he takes -from A the sum which he had paid, and returns to him the utensils or the books. The Gemara explains that although according to strict law A is entitled to take them without returning the money, since B purchased them from a thief before ye'ush, so that he did not acquire them, the Sages nevertheless instituted the "Marketplace Regulation," so that people would not refrain from buying and selling in the marketplace to the effect that whoever purchases an object in public in the marketplace, but did not know that it was stolen, even though he later learned that it had been stolen, does not need to return the object to its owner without compensation. The Gemara also explains that our mishnah refers to a case in which A is a householder, who is not likely to sell his utensils, therefore since the report of the theft had spread, and he has witnesses that the utensils are his, we do not suspect that A had sold them.

And if - report that utensils or books had been stolen from him had - not - spread, he is not able - not everything is dependent - on him - i.e., A is not believed to say that the utensils or the books are his, for I can say: he - being pressed for money - sold them to another - and this one - B - bought them from him - and now A wishes to repurchase them.

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