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 75a-b
As we have seen above (daf 64b) in cases where a thief is obligated to pay kenas – the penalties of two, four or five times the value of the stolen object (over and above returning the object or its value to his victim) – if the thief steps forward and admits his guilt, then he will only need to return the object (or pay back its value); he will not have to pay the penalty – in the language of the Gemara – modeh b’knas patur.
While this ruling is accepted by all, there is a difference of opinion whether this will be true even if other witnesses testify against him. Rav believes that even if witnesses are found who can testify about this situation, once the thief has admitted his guilt he is free from any obligations to pay the penalty. Others disagree, arguing that his admission is not sufficient to free him, since there were others who testified against him.
In our Gemara, Rav Hamnuna limits Rav’s ruling only to cases where the accused person’s admission obligated him in payment. If, however, his admission had no effect on what he would have to pay, it will not free him from the kenas should witnesses appear. Thus, if someone denied stealing an ox, and witnesses came to testify that he had stolen the animal, he is obligated to return it and pay the kenas of kefel (double). If at this point he admits that he also killed or sold the animal – which would ordinarily obligate him to pay an additional kenas – should witnesses come and corroborate that fact, he would still pay the additional kenas, since his admission had no effect on his obligation to pay.
Rashi explains that this is because we assume that the thief knew the law of modeh b’knas patur and was attempting to use it just to free himself from the obligation of the additional kenas. Others suggest that Rav’s ruling is based on the assumption that the thief’s admission is part of the process of teshuva – repentance – but in this case there may be ulterior motives, so we cannot rely on his admission.
Bava Kamma 76a-b
As we have learned, according to the Torah in Parshat Mishpatim (Shemot chapters 21-22) someone who steals an animal or an object will pay back twice the value of the object he stole (see Shemot 22:6-8) as a penalty – a kenas. If he stole an ox (shor) or a sheep (seh) and killed them or sold them he will pay back five times the value of an ox and four times the value of a sheep (see Shemot 21:37).
According to our Mishnah (74b) if a person stole an animal, consecrated it to the Temple (in a manner that actually takes effect, e.g. after the original owner had despaired of ever getting it back, effectively giving up ownership of it) and then killed it, he will not be obligated to pay four or five times the value of the animal. The Gemara suggests that it is obvious that he will not have to pay the kenas, since by that time the animal no longer belonged to the original owner, as it had been transferred to the Temple. The question raised by the Gemara, however, is why consecrating it to the Temple does not fall into the same category as selling the animal, and the thief should already be obligated to pay the kenas at that point.
In answer to that question the Gemara distinguishes between transfer of ownership from one person to another, where all rights and responsibilities switch to the new owner, and consecrating an animal to the Temple, where some level of ownership is retained by the person who declares the animal to be hekdesh (holy to the Temple).
Tosafot explain that this statement in the Gemara is true of animals that are consecrated for the purpose of sacrifice; they retain a connection to their owner who will bring them as a sacrifice. If, however, the animal was given to the Temple for bedek ha-bayit – as a monetary gift to be sold or used in the Temple – this would not be true. The Ri”d argues that even bedek habayit remains connected to the original owner in a unique way, as evidenced by the fact that the owner would need to pay a 20% premium if he decides to redeem the animal from the Temple, while anyone else purchasing it for the Temple treasury would pay its normal value.
Bava Kamma 77a-b
As we have learned, if someone steals an ox (shor) or a sheep (seh) and killed them or sold them he will pay back five times the value of an ox and four times the value of a sheep (see Shemot 21:37) as a kenas – a penalty.
What exactly is a seh?
According to Rava, the term seh refers specifically to a simple normal animal, but not one who was kilayim – a cross breed between a sheep and a goat. Rashi (in Hullin 78b) says that the source for Rava’s ruling is a passage in Sefer Devarim (14:4), which teaches that kosher animals include a seh from the family of sheep and a seh from the family of goats.
Rava’s ruling notwithstanding, a baraita that appears in our Gemara teaches that the law requiring the thief pay a kenas of four time the value of a seh applies even if the animal is kilayim – a cross between a sheep and a goat. The Gemara explains that the passage that teaches the laws of kenas says shor o seh – if either an ox or a sheep was stolen. Since it is impossible for an ox and a sheep to cross-breed, the Torah‘s emphasis on the “either/or” aspect is understood to include any type of seh – even one that is kilayim. Admittedly, when the Torah uses the “either/or” terminology it is sometimes understood as excluding kilayim, but that is only if the two animals under discussion are animals that theoretically could produce offspring together (e.g. Vayikra 22:27).
Despite certain similarities that we find among domesticated animals, sheep and goats belong to the family of caprinae, while larger animals like oxen, bulls and cows belong to the bovinae family. This genetic difference, as well as the sheer disparity in size, will not allow them to produce offspring together.
Bava Kamma 78a-b
According to the Torah (Shemot 13:13) firstborn male children and kosher animals are consecrated to the Temple from birth, and must be redeemed. There is one non-kosher animal that also must be redeemed by exchanging it for a seh – a lamb. Our Gemara quotes a Mishnah in Masechet Bechorot (1:5), which teaches that the exchange cannot take place with just any animal – it cannot be exchanged for a calf or a non-domesticated animal; it cannot be exchanged for a seh that had already been slaughtered, an animal that is clearly a treifah (it has a physical condition that will cause it to die within a year) or with a koy.
The koy is an animal that has the features of both a wild animal and a domesticated one.
Identifying the koy is a difficult task. Even though it is mentioned many times in the Mishnah and Talmudic literature, that is not because it is a common animal, rather because its status between a wild and domesticated animal allows it to be a test case for many halakhot. The disagreement as to its identification began in the time of the Mishnah, when some of the Sages argued that it is the offspring of a deer or similar animal with a goat. Others claim that it is a unique type of animal – an Ayal ha-bar.
The Ayal ha-bar can be identified with the ovis musimon, which, according to many, is the forerunner of domesticated cattle. It is distinguished by its short hair and grey color, and it lives in mountainous regions, where it is a nimble climber – today mainly in uninhabited areas in Europe. It is likely that the clear similarities between a koy and a sheep, together with its being a wild animal, led to the Sages’ confusion about its classification.
Its name – koy – and even the pronunciation of the name are themselves the subject of disagreement.
Bava Kamma 79a-b
Throughout this chapter – Perek Merubah – we have focused on kenasot – the punishments that a thief will have to pay over and above returning the stolen object or its value. It is important to note that these kenasot apply only to a ganav – a thief, who looks for an opportunity to steal when no one will see him. A gazlan – a robber, who brazenly steals in broad daylight – is not obligated to pay kenasot.
This seeming anomaly is addressed in our Gemara, where we find the question of why the Torah was more strict with a ganav than with a gazlan presented to Rabban Yohanan ben Zakkai by his students. Rabban Yochanan ben Zakkai explained to them that the ganav appears to fear people, yet he has no fear of God. By making sure that no one will see him steal, he is effectively denying the all-seeing eye of God who knows what he is doing. The gazlan is not a God-fearing person, but at least he is not afraid of people, either.
The Maharsha explains that although our intuition would usually encourage us to think that the individual who flaunts the law publicly should be punished more harshly, Rabban Yochanan ben Zakkai emphasizes the aspect of chillul ha-Shem – of the desecration of God’s Name – that is involved in these stories. While the ganav is clearly concerned with the consequences of his actions, he denies God’s omniscience and active participation in the world. The gazlan clearly recognizes that there is a judge in the world, and that he may be forced to pay for his crimes, but he acts in response to his personal drives for immediate gratification. Nevertheless, by his actions he shows no indication of a lack of faith in God.
Bava Kamma 80a-b
Our Gemara discusses the types of cries and prayers that are appropriate – even on Shabbat.
A baraita is brought on our daf that teaches how regarding certain misfortunes (aside from drought), such as itching, locusts, flies, hornets, mosquitoes or a plague of serpents and scorpions, no “alarm” was raised, but a “cry” was raised. The “alarm” is understood by Rashi as blowing the shofar, which was part of the fasting ritual; the “cry” is the recitation of additional prayers.
What were these calamities enumerated in the baraita?
A plague of the insects that are mentioned stems from specific weather conditions that encourage the growth and development of these pests. Zevuvim – flies – were considered so problematic that some ancient tribes had specific rituals and idols whose purpose was to protect them from flies. Yitushim – mosquitoes – are disturbing not only because they are pests, but also because they are carriers of malaria. The tzir’ah – vespa orientalis, or hornet – is mentioned in the Tanach as one of the instigators of the emigration of the Canaanite nations from the land of Israel (see Shemot 23:28 and Yehoshua 24:12). There is historical evidence that entire cities were abandoned by their populations because of swarms of flies or hornets.
Plagues of serpents and scorpions are also often weather-related. If conditions are right and there is an ample food supply, the sheer number of sustained, live births rises. Under such circumstances we find that these creatures are forced into closer proximity to the places where humans live, and there is more opportunity for interactions with them than we would have under normal circumstances, thus increasing the likelihood of attacks on humans. On occasion the simple fact that there is overcrowding in their natural habitat will lead these creatures to become more attack-prone, as well.
Bava Kamma 81a-b
As part of the Gemara‘s discussion about rabbinic ordinances established in order to encourage the settlement of the land of Israel, our Gemara quotes a baraita that enumerates a number of conditions that Joshua established upon entering the land. Among them were the following:
- permission to graze cattle in wooded areas
- permission to gather wood from private fields
- permission to gather grass for feed in most fields
- permission to trim most trees and use the shoots for planting
- a newly dug well can be used by everyone in the community
- permission for all to fish in the Kinneret Sea with rods (but not nets)
In discussing the details of these enactments, we find limitations on certain aspects of them. For example, Rav Papa teaches that grazing cattle in wooded areas was limited only to smaller animals in a thicker forest, where they would do little damage. It would be forbidden, however, to take small animals to graze in a sparsely wooded area, or larger ones even in a thickly wooded area.
Regarding the collection of wood, the Gemara limits it to very specific kinds of wood, arguing that Joshua only permitted the collection of Hizmei and Higi – thorn-bushes that no one really cares about. Even the collection of Hizmei and Higi was limited to taking those thorns that are still connected to the ground, so that by doing so a service is provided to the owner of the field, and previously cut thorn-bushes may have been prepared for use by the field’s owner.
Hizmei can be identified with Ononis antiquorum L. of the Papolinaceae family. It is a thorny plant that grows to about 75 centimeters (2.5 feet), which is found growing wild in fields and valleys.
The scientific name for Higi is Alhagi maurorum Medik. It, too, is a thorny plant with smooth, non-serrated leaves. Ordinarily it grows to a height of 30 centimeters (1 foot), although it occasionally grows as high as one meter (3 feet).
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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