The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
Bava Kamma 103a-b
How much effort must a thief expend in returning something that he stole?
According to the Torah (Vayikra 5:21-26) if someone steals from his friend and then lies, swearing that he did not do so, he is obligated to return the money (plus a penalty of an additional fifth) and bring a special sacrifice called an asham gezeilot. The Torah emphasizes that it must be returned to the victim, from which the Mishnah on our daf, concludes that if someone steals from his friend something that is worth at least a prutah (a small coin) and swears falsely, he is obligated to follow him even to Madai – to Medes, part of the ancient Iranian Empire – to return it. Furthermore, he must return it to him personally, and it will not suffice to return it to the victim’s son or to his agent, although he would be allowed to give it to a representative of the court.
The Rambam in Hilkhot Gezeila (7:9) explains that he must make a special effort to find the victim and pay him because of the false oath that he took, which convinced the victim that there is no point in seeking repayment. If, however, no oath was taken then the thief can simply wait until the victim comes searching for the stolen object (some suggest that he will be obligated to let the victim know that he is holding the object so that he can come and collect it).
With regard to the leniency allowing the thief to return it to the court, Rashi explains the halacha is interested in saving him the expense of traveling to return an object that may be worth less than the travel costs. The Rosh suggests that this is a form of takanat ha-shavim – a ruling established to encourage people to repent.
During the Mishnaic period, Madai was a far-off city, and getting there was a difficult and time-consuming effort.
Bava Kamma 104a-b
As we learned on yesterday’s daf, if someone steals from his friend something that is worth at least a prutah (a small coin) and swears falsely, he is obligated to follow him even to Madai – to Medes, part of the ancient Iranian Empire – to return it. Furthermore, he must return it to him personally, and it will not suffice to return it to the victim’s son or to his agent, although he would be allowed to give it to a representative of the court. Our Gemara asks whether an agent who is specifically appointed by someone to accept something on his behalf will have the power to receive payment for him. Rav Hisda believes that he can accomplish that; Rabbah believes that he cannot.
The Gemara explains Rav Chisda’s ruling as based on the fact that if someone goes to the trouble of gathering witnesses to appoint an agent, certainly his intention is to give him the power to act on his behalf. Rabbah argues that the man was simply publicly stating that this man is reliable, and that things could be sent with him, but he was not formally charging him with the responsibilities of acting on his behalf to accept payment for him.
Rashi (and most of the other commentaries, as well) understand the Gemara’s discussion to be a debate about establishing agents in general, although Rav Ovadia mi-Bartenura suggests that it is limited to the case of our Mishnah and discusses only returning stolen objects.
Rashi explains that the difference between Rabbah and Rav Chisda is whether handing the money (or the stolen object) to the agent is as if he gave it personally to the man himself. This is certainly important according to the Bartenura’s approach that we are focused on the case in the Mishnah. According to the other approach, the difference will still be important in a case where the agent does not succeed in getting the money back to the owner. According to Rav Chisda, the money was already returned, since the agent represents the owner; according to Rabbah, the money has not yet been returned.
Bava Kamma 105a-b
When discussing a thief’s obligation to return a stolen object, if he owes less than a perutah, the obligation of return, he does not need to chase down the owner to return it to him. The issue of partial payment is discussed by Rava, which leads the Gemara to bring a number of cases where Rava takes positions on similar issues.
One such case that is discussed by the Gemara is a chavit – a jug or barrel – that has a hole in it, but the hole was closed up by shemarim – sediment. In that situation, the chavit is still considered to be complete with regard to the laws of ritual purity.
Rashi explains the case to be one where the havit was an earthenware vessel covering a chimney or other opening in a house, thus protecting objects in the connecting attic from becoming tamei (ritually defiled). This would only work if the utensil was whole. Rabbeinu Chananel and other rishonim suggest that the case is one of a tzamid patil – a tight-fitting cover on an earthenware vessel, which protects the contents of the vessel from tumah.
The sediment that closed up the hole or crack in the vessel is the product of the fermentation process in wine. During fermentation, yeast interact with natural sugars in the grape juice producing ethyl alcohol, and carbon dioxide. As the yeast grow and develop during this process, they become stuck to each other and produce clumps that are often heavier than the wine, which causes them to sink to the bottom of the barrel. These may harden and create a layer of impermeable material. Since the development of the sediment is encouraged by the exposure to air, it is not surprising to find a large amount of sediment near a crack in the barrel, something that will likely close the hole.
Bava Kamma 106a-b
We have already learned that someone who steals an animal will have to pay back twice its value; if he sold it or killed it, he will have to pay back four or five times its value. Our Gemara investigates whether this same law will be true also in cases where someone did not steal the animal, but received it to watch and then claims that it was stolen from him, intending to keep it for himself.
One baraita that appears to suggest that he would not be obligated to pay back four or five times the value of the animal teaches that in a case where a person falsely claimed that the animal had been stolen from him and then witnesses came and testified that he had eaten the animal, he will pay kefel. The Gemara rejects this by arguing that there are situations that he could have eaten the animal without having actually slaughtered it – the animal may have been a neveilah – it may have died or been killed on its own (of course, the animal would not be kosher in such a case).
Another situation raised by the Gemara is of an animal that can actually be eaten without shechita – the case of a ben peku’ah. A ben pekua’ah is an animal that was still in its mother’s womb when its mother was slaughtered (as opposed to a yotzei dofen, which is an animal that is delivered by way of a Caesarian section when the mother is still alive). Just as all an animal’s internal organs become kosher at the moment of shechita, similarly a viable animal that is removed from its mother after slaughter is considered by Jewish law to be a living, breathing kosher animal that can be eaten without shechita.
It should be noted that if the unborn animal is at a stage that it is ready to be born, Rabbi Meir rules that it is considered an independent entity and will not be considered slaughtered. Rabbi Shimon disagrees and rules that even in such a case the animal will not need shechita.
Bava Kamma 107a-b
One enigmatic rule in Jewish law is the law that distinguishes between two different responses to an accusation that one person owes money to another. The halacha is that if the defendant denies it entirely we believe him without requiring him to bring any further proof; if he denies that he owes all of the money, but admits that he owes part of it, then he must pay the amount that he admits to and then take an oath that he does not owe any more.
Why do we trust the individual who denies it all, while making the person who admits that he owes some of the money take an oath?
In answer to this question, Rabbah teaches chazaka en adam me’iz panav lifnei ba’al chovo – we work with the assumption that a person will not have the temerity to deny his obligation to the face of the lender. Rabbah explains the thinking of someone who is modeh be-miktzat – who admits to being partially responsible – as follows. Perhaps he really does owe the money, but he does not have enough to pay at this time. Since he cannot face the lender and deny it all, he admits to partial responsibility, assuring himself that when he has the means to pay the full amount he will do so.
Rashi explains that Rabbah’s teaching of chazaka en adam me’iz panav lifnei ba’al chovo is based on the fact that after the lender has done the borrower such a good turn by loaning him money (we must remember that biblical loans do not accrue interest and offer no advantage whatsoever to the lender), the borrower could not possibly deny his obligation. Tosafot and the Ramban argue that Rashi’s explanation cannot be true, because the law applies not only to loans, but also to cases such as when the lender is holding collateral and in the face of accusations from the borrower admits to only part of the claim. Their explanation of this halacha is that since chazaka en adam me’iz panav lifnei ba’al chovo a person is unwilling to totally deny a claim in the face of someone who knows the truth.
Bava Kamma 108a-b
According to the Torah, there are two types of shomrim (people who agree to watch something for someone else) – a shomer chinam (someone who does it as a favor and will not be paid) and a shomer sachar (someone who is paid for his time and effort). The shomer chinam will only pay for the object if he did not watch it properly, but if it is lost or stolen, he will not have to pay, rather he will simply need to take an oath that he watched the object properly. A shomer sachar has a higher level of responsibility and he will have to pay for the object even if it was lost or stolen.
According to the Mishnah (Bava Metzia 33b), in the event that a shomer hinam chooses to pay rather than to take an oath that the object was stolen, should the thief be found, then the shomer chinam will receive the double payment, since the owner has already received payment for the object.
Our Gemara discusses a case where the shomer chinam first takes an oath that the object had been stolen and then pays the owner for it as well. In this case, Rava believes that he will still receive keifel (double payment) from the thief when he is found; Abayye rules that keifel should be paid to the owner, who will then pay back the shomer chinam the money he received from him.
The Tosafot Ri”d explains the argument as follows. When the shomer chinam chooses to pay the owner, he is not actually purchasing rights to the object. This is clear, since the thief will have to return the object to the original owner if it is still extant (the owner will then have to return the payment to the shomer chinam). The reason that the shomer chinam receives kefel is a concession made to him because by agreeing to pay, he freed the owner from a protracted court case investigating the circumstances of the disappearance of the object. In our case, even though the shomer chinam eventually agreed to pay, that was only after the court case took place. Thus there is room for Abayye and Rava to disagree about who deserves to receive the kefel.
Bava Kamma 109a-b
We have already learned (daf 103) that a person who steals and swears falsely, denying the theft, must pay back the amount he stole plus and additional penalty of one fifth. Our Mishnah (108b-109a) teaches that if a person stole from his father and then denies it under oath, in the event that his father dies, he must pay back the other descendants who inherit his father.
According to Rashi and other commentaries, in this case, the thief will lose his share in the inheritance when he pays back the stolen money. If he does not want to lose his share, the Mishnah has a suggestion – he can borrow money from a third party who will come and collect it. The Me’iri explains that this is permitted in order to ensure that he does not retain the actual money that he stole, so we find a method that will allow him to “launder” the money. This concern appears in the Gemara, as well, where Rav Yosef suggests that if he is the only person who will inherit, he should turn the money over to charity; according to Rav Papa, he should even announce that the charity money is money that he stole from his father.
According to the Rambam, the Mishnah never suggests that someone will lose his share of the inheritance, since his share belongs to him and cannot be taken away. The point of the Mishnah is that the money that was stolen cannot remain in his possession and must be transferred to someone else, leaving him to get his share of the inheritance from other moneys. In the event that he does not have brothers who are set to inherit, then he must find some other way of moving the money out of his possession, e.g. by paying off a loan or giving charity – as long as he does not retain his ill-gotten gains (see Rambam Hilkhot Gezeila 8:2-3).
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.
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