TALMUD. The 21th Massekhet – Bava Kamma

Massekhet Bava Kamma (“The first gate”) was once part of a large tractate that was made up of the first three massekhtot in Seder Nezikim (“The Order of Damages”). These “three gates” together deal with monetary matters and they encompass almost all civil law in the Jewish law canon. Laws relating to criminal matters – and certainly those having to do with purely religious matters – appear in these tractates only as side issues. Massekhet Bava Kamma deals with one specific area of law – the areas of responsibility and types of payments that someone is obligated in when damaging his fellow, both when causing him bodily harm and when damaging his property. This is true whether the damage was done by the individual himself or by his property.

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119 Responses to TALMUD. The 21th Massekhet – Bava Kamma

  1. Bava Kamma 101a-b: Working with stolen dye

    While discussing the case of the Mishna (100b) regarding poorly dyed wool, our Gemara asks whether we view the dye that has changed the color of the wool as an independent entity or as something that has become part-and-parcel of the wool. The Gemara explains that this question can be raised, for example, in a case where a person stole wool together with prepared dye, and then dyed the wool with it. If the thief chooses to repent and return what he stole, is it enough to give back the newly dyed wool (i.e. would that be considered returning both the wool and the dye), or do we see it simply as wool and he would have to pay for the stolen dye, as well.

    The Gemara suggests that the answer to this question is obvious. Since the wool is now more valuable than it was before, it is clear that the wool contains the value of the dye, as well. The Gemara argues that this is not always the case, since there are times that dyed wool may be the same price as plain wool, or we may be dealing with a case where the product that was dyed was not wool, but kofa.

    With regard to the case of kofa, one possibility suggested by Rashi is that the thief stole a monkey and dye, and colored the monkey, whose value would not change because it had been dyed. Rashi’s other approach is that the word kofa means a simple reed basket, whose value does not change if it is colored.

    Other commentaries assume that the word kofa means a monkey and offer different interpretations of the Gemara’s response. According to an opinion in the Arukh, the Gemara is suggesting a case where a monkey owned by the thief colored the wool, in a manner that certainly did not increase its value. Tosafot interpret the case as one where the dyeing was done so poorly that the wool came out looking ugly – like a monkey.

    Although the Gemara continues discussing this case, it does not reach a clear conclusion about the value of the dye that is subsumed within the wool.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  2. Bava Kamma 102a-b: When an agent deviates from the terms

    As we learned in the Mishna above (daf, or page, 100), Rabbi Meir and Rabbi Yehuda differ regarding how to treat a worker who diverged from the instructions that he received from the owner and chose to dye wool red instead of black or vice versa. Rabbi Meir believes that the worker takes possession of the object that he misused, while Rabbi Yehuda believes that the owner retains possession of the object, but will pay either the worker’s expenses or the increased value of the object – whichever is less. Our Gemara suggests that the same argument can be applied to other cases, as well.

    The Gemara presents two baraitot that discuss a single case –

    Someone gives money to an agent and asks him to purchase wheat as an investment, and the agent purchases barley – or he instructs him to purchase barley and the agent purchases wheat. We find that one baraita says that whatever loss or profit comes from this transaction will belong to the agent; another baraita rules that the agent will suffer any losses that come from this transaction, but if there is a profit then the investor and the agent will share equally. Rabbi Yohanan suggests that we should not see these rulings as contradictory, since they simply reflect two different opinions. According to Rabbi Meir, once the agent chose to ignore the investor’s instructions, the investment becomes his own; according to Rabbi Yehuda, the owner retains his interest in the investment and will share in the profits, but not in the losses.

    Most of the commentaries follow Rashi’s approach to this case, and understand that the original agreement offered the agent some level of partnership in the investment. Rashi suggests that this is the case because of the ruling that the owner and the agent will share any profits, indicating that there was some profit-sharing agreement between them. The Meiri argues that even if the agent were not originally a partner, he would still receive a share of the profits in special circumstances, e.g. if he was instructed to purchase something at a set price and he succeeded in purchasing it for less.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  3. Bava Kamma 103a-b: One who robs and lies

    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 Mishna on our daf (page), concludes that if someone steals from his friend something that is worth at least a peruta (a small coin) and swears falsely, he is obligated to follow him even to Madai – to Medea, 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 halakha 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.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  4. Bava Kamma 104a-b: The power of the agent

    As we learned on yesterday’s daf (page), if someone steals from his friend something that is worth at least a peruta (a small coin) and swears falsely, he is obligated to follow him even to Madai – to Medea, 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; Rabba believes that he cannot.

    The Gemara explains Rav Hisda’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. Rabba 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 Ovadiah mi-Bartenura suggests that it is limited to the case of our Mishna and discusses only returning stolen objects.

    Rashi explains that the difference between Rabba and Rav Hisda 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 Mishna. 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 Hisda, the money was already returned, since the agent represents the owner; according to Rabba, the money has not yet been returned.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  5. Bava Kamma 105a-b: Plugging the hole

    When discussing a thief’s obligation to return a stolen object, if he owes less than a peruta (the smallest denomination coin in the time of the Mishna) – 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 havit – a jug or barrel – that has a hole in it, but the hole was closed up by shemarim – sediment. In that situation, the havit 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 tameh (ritually defiled). This would only work if the utensil was whole. Rabbeinu Hananel 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 tum’ah.

    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.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  6. Bava Kamma 106a-b: Eaten without slaughtering

    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 (double). 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 neveila (unslaughtered animal carcass) – 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 shehita (ritual slaughter) – the case of a ben pekua. A ben pekua 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 shehita, 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 shehita.

    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 shehita.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  7. Bava Kamma 107a-b: Exhibiting insolence

    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 halakha 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, Rabba teaches hazaka ein adam me’iz panav lifne ba’al hovo – we work with the assumption that a person will not have the insolence, the temerity, to deny his obligation to the face of the lender. Rabba 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 Rabba’s teaching of hazaka ein adam me’iz panav lifne ba’al hovo 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 halakha is that since hazaka ein adam me’iz panav lifne ba’al hovo a person is unwilling to totally deny a claim in the face of someone who knows the truth.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  8. Bava Kamma 108a-b: Oaths and payments

    According to the Torah, there are two types of shomrim (people who agree to watch something for someone else) – a shomer hinam (someone who does it as a favor and will not be paid) and a shomer sakhar (someone who is paid for his time and effort). The shomer hinam 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 sakhar 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 Mishna (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 hinam will receive the double payment, since the owner has already received payment for the object.

    Our Gemara discusses a case where the shomer hinam 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 kefel (double payment) from the thief when he is found (the money goes to the person in whose possession the item was when it was stolen); Abaye rules that kefel should be paid to the owner, who will then pay back the shomer hinam the money he received from him.

    The Tosafot Ri”d explains the argument as follows. When the shomer hinam 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 hinam). The reason that the shomer hinam 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 hinam eventually agreed to pay, that was only after the court case took place. Thus there is room for Abaye and Rava to disagree about who deserves to receive the kefel.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  9. Bava Kamma 109a-b: Laundering stolen money

    We have already learned (daf, or page 103) that a person who steals and swears falsely, denying the theft, must pay back the amount he stole plus an additional penalty of one fifth. Our Mishna (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 Mishna has a suggestion – he can borrow money from a third party who will come and collect it. The Meiri 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 Pappa, he should even announce that the charity money is money that he stole from his father.

    According to the Rambam, the Mishna 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 Mishna 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).

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  10. Bava Kamma 110a-b: Stealing from a convert

    Every Jewish person is assumed to have relatives, even if they are distant relatives. Thus, if someone steals from his fellow and then chooses to return the theft, even if the victim has died he can return it to one of the people who inherits the victim. One exception is a convert, who may have no relatives. Our Mishna refers to the case of gezel ha-ger – of someone who stole from a convert. Should the convert die, the thief must bring a sacrifice and return the money (plus a penalty) to the kohanim in the Temple.

    Rava asks whether this money is considered to be an inheritance (yerusha) or a gift (matana). If it is the former, then it can be given to the kohanim even if it has no value (e.g. if it was hametz she-avar alav ha-pesah – leaven that was in the possession of a Jewish person over Passover, which cannot be used after the holiday), while if it a gift given by the Torah to the kohanim, it will have to be something of value.

    To respond to this question, our Gemara brings a baraita which teaches that twenty four matnot kehuna (priestly gifts) were given to Aaron the High Priest and his sons (i.e. to all kohanim) through a kelal u’perat u’klal –

    a general command (see Bamidbar 18:8)

    followed by specific commands (see Bamidbar 18:9-18)

    followed by a general command (see Bamidbar 18:19) –

    together with brit melah – a covenant of salt – which is mentioned in the continuation of the passage.

    According to the baraita, if someone fulfills these twenty four gifts, it is as though he keeps kelal u’perat u’klal and brit melah while if someone does not, it is as though he rejects kelal u’perat u’klal and brit melah.

    Rashi and other commentaries interpret this to mean that someone who keeps these is considered to be keeping all of the Torah – which is interpreted using this method – and to have brought all of the sacrifices which are brought on the altar with salt.

    The baraita enumerates the 24 gifts as follows:

    Ten in the Temple (i.e. they can be eaten only in the beit ha-mikdash)

    Four in Jerusalem

    Ten throughout the land, the last of which is gezel ha-ger.

    In any case, the fact that the baraita refers to gezel ha-ger as one of the matnot kehuna is understood to indicate that it is a matana and must have value.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  11. Bava Kamma 111a-b: Inheriting a theft

    The tenth perek (chapter) of Massekhet Bava Kamma begins on our daf (page). Entitled ha-gozel u-ma’akhil (“he who steals and feeds”) it deals with a wide range of subjects, but focuses on what is considered to be gezel (stealing) – when it must be returned and when it need not be returned.

    The first Mishna in the perek teaches that when a man steals and feeds his children with his ill-gotten gains, his children will not be obligated to return the theft.

    The Rashba points out that even in situations where the children made an honest mistake and believed that an animal that they received from their father belongs to them, if it turns out that it really was borrowed, they will have to pay for it if it no longer exists. Why should a case of theft be any less strict? He explains that in the case of the borrowed animal, the children were obligated to return the animal, while in the case of theft their father may have taken possession of it by making some change in the animal, so by the time they received it, they had no obligation to return it – after all, they are not the thieves.

    One case in the Mishna where the children will be obligated to return the money to its owner is in the event that the object that was stolen has on it ahrayut – “responsibility” – they will have to pay. The simplest explanation for ahrayut is that it is real estate, which remains in its original state and must be returned. Nevertheless, the Gemara offers other cases where there will also be an obligation on the children who inherit their father to return monies that he stole. Rabbi Yehuda HaNasi, for example, taught his son, Rabbi Shimon that the intention of the Mishna is to obligate the children to return the stolen object anytime it was clearly stolen – e.g. an ox that was used for plowing or a donkey that was used as a pack animal – in order to honor their father and clear his name.

    As far as the halakha is concerned, the Rambam rules (Mishneh Torah, Hilkhot Gezeila 5:6) that following the Ge’onic enactments that required children who inherit their father to pay off all his debts, it is clear that they will be obligated to return what he stole, as well.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  12. Bava Kamma 112a-b: Inheriting a borrowed cow

    While discussing the level of responsibility that children have regarding returning an object that their father stole, the Gemara turns its attention to other responsibilities that children may inherit from their father regarding things that belong to others. Rava teaches that if the father passes away and he has in his possession an animal that he has borrowed, the children can continue to use the animal for the duration of the agreed upon period. If the animal dies, they are not obligated to repay the owner, even though as a sho’el – a borrower – their father would have been responsible for any accidents that took place.

    The Ra’avad explains that the children can continue to use the animal, since they inherit all of their father’s rights, including the right to use this borrowed animal. Thus the owner of the animal cannot take it back before the agreed upon date. Nevertheless, since they did not agree to the terms of the she’ela (borrowing), they did not accept upon themselves any obligation regarding accidents. At the same time, the Ra’avad and Rashba agree that the children will be responsible if the animal was lost or stolen, since they must have the status of a shomer sakhar – someone who is paid to guard an object – since they are getting “payment” inasmuch as they are using the animal.

    Some rishonim suggest that Rava’s ruling applies only if the children did not actually use the animal; once they do make use of the animal all of the rules of sho’el will apply to them since they have implicitly agreed to be borrowers. The Ra’avad disagrees since he believes that the responsibilities of a sho’el only come into play if the borrower agrees to them, and not merely as a consequence of his use of the borrowed animal.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  13. Bava Kamma 113a-b: The tax collector

    Our Mishna teaches that a person cannot exchange money with tax collectors, implying that we must work with the assumption that the money they have is stolen.

    With regard to this ruling, our Gemara points to Shmuel’s ruling that dina d’malkhuta dina – that we must follow the rules of the government – and questions how the Mishna can assume that a person who works as a tax collector is likely involved in criminal activities.

    Two answers are suggested by the Gemara –

    Rav Hanina bar Kahana said that Shmuel says that this is only true in the case of a tax collector who does not have a limitation placed by the governor, but takes as much as he sees fit.

    Rabbi Yannai suggests that our Mishna is talking about a self-appointed tax collector, who is not operating with government approval.

    The situation of a mokhes – a tax collector – was different in Talmudic times than it is today. In those days (and in some places this was true until fairly recently) the right to collect taxes was leased by the government to individuals who would then collect taxes in the name of the government. The individual who purchased this right from the government would then assign others to collect the taxes and pay him a percentage of the receipts. There was a lot of room for cheating and dishonesty given the situation that tax collection was a business, and the more that was collected, the more profit was made. Thus, the mokhes could choose to forgive the debts of his friends and relatives entirely, choosing to collect more than was appropriate from those people with whom he did not have a relationship. It is for this reason that the Talmud often presents the mokhes as equivalent to a robber.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  14. Bava Kamma 114a-b: Despair and acquisition

    As we learned on yesterday’s daf (page), the situation of a mokhes – a tax collector – was different in Talmudic times than it is today. Tax collectors were individuals who purchased the right to collect taxes from the government and then could choose to collect different amounts from different people – a system that created anomalies and caused the Rabbinic Sages to consider a mokhes a dishonest person.

    The Mishna on our daf teaches that if a person had his donkey or his cloak taken by a mokhes, but then received a different one from the mokhes in its stead, he can keep it, since we can assume that the original owner despaired of ever getting it back (referred to as ye’ush – despair).

    The Gemara opens by quoting a baraita that teaches that when the person receives an object in exchange for his own from the mokhes, he should return it to the original owner. The explanation for this ruling would be that simple ye’ush does not suffice to allow for transfer of ownership. An alternative reading of the baraita suggests that although the recipient can keep the object because of the owner’s ye’ush, he would likely return it to the original owner, since a person does not want to keep property that does not really belong to him.

    According to Rashi, the baraita (in either of its two presentations) stands in disagreement with the Mishna, which did not see any need to return the object. The Ra’avad disagrees, arguing that a baraita that is introduced with the term tanna immediately after a Mishna invariably comes to explain the Mishna, rather than argue with it. The Ra’avad explains that the baraita expects the recipient to return the object to its owner – but not for free. He can demand from the owner to pay him what he lost in his interaction with the mokhes.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  15. Bava Kamma 115a-b: Salvaging the honey

    The Mishna on our daf (page) tells a story of two people who were walking with their respective barrels, one full of valuable honey and the other filled with less valuable wine. When they realized that the barrel of honey was leaking, the man holding the barrel of wine poured it out so that he could save his friend’s more valuable honey. According to the Mishna, the man who spilled out his wine will only receive appropriate wages for his assistance (he will not receive the value of the wine he spilled out) unless he clearly reaches an agreement with the owner of the honey that he will be paid for his loss.

    The Gemara objects that since it was going to be lost, the honey should be seen as hefker (ownerless), similar to a case where a person transporting barrels of wine or oil, realizing that they had broken, cannot declare the wine and oil to be the teruma (tithes) on the grapes and olives that he has at home. In that case, he cannot do that because once the barrels were broken, the wine and oil no longer belong to him – they automatically become hefker since they are in the process of being destroyed. The Gemara answers that we must be dealing with a case where the barrels will not be entirely destroyed, and the contents will not go totally to waste.

    According to Rashi, the Gemara’s suggestion is that the person who saved the honey can claim it for his own. The Rosh explains that if the honey is hefker the person who saved it can tell his friend that if he will not pay for the lost wine then he will keep the honey for himself, since he is not really obligated to do so.
    The Gemara’s description of a case where the barrel may break but still retain its contents is ekel beit ha-bad. The ekel (basket) is the place where olives were placed in an olive press. A heavy beam – the korat beit ha-bad – pressed down on the olives, whose oil would then seep through the netting of the basket into a receptacle.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  16. Bava Kamma 116a-b: When a river washes away your donkey

    According to the Mishna (115b), if a flood threatens to kill two animals and the owner of the one that is worth less money goes and saves the more valuable animal, he will only get paid for his efforts – he will not be reimbursed for the value of his animal. If, however, the owner of the more valuable animal agreed beforehand to pay him for his animal, then the owner will be obligated to fulfill the agreement.

    In our Gemara, Rav Kahana asked Rav whether the owner of the more valuable animal will be obligated to fulfill such an agreement in the event that the less valuable animal did not drown, but managed on its own to climb out of the river on the other side. Rav replied that he received a gift from heaven – i.e. that the owner of the less valuable animal will receive payment in any case.

    To support this ruling, the Gemara tells the story of Rav Safra who was traveling through the desert with a caravan. When they saw that a lion was tracking the group, everyone took turns leaving a donkey out at night for the lion to eat. On the night that it was Rav Safra’s turn to leave a donkey, the lion did not eat it and Rav Safra took it back for himself.

    Although lions ordinarily attack wild animals, on occasion they follow a caravan traveling through the desert (e.g. between Syria and Babylon). The lion (or lions) would then attack the caravan at night, aiming at the pack animals – ordinarily donkeys. In order to avoid such attacks and possible injury or death to the people in the caravan, it was common practice to leave a less valuable animal in a place where the lion could get to it easily, thus protecting the people and the more valuable animals. After eating a large animal like a donkey, the satiated lion would not attack until it was hungry, so it is possible that a night might go by with no attack whatsoever.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  17. Bava Kamma 117a-b: Killing an informer

    During Talmudic times, one of the most disturbing elements in the Jewish community was a moser – someone who collaborated with the foreign government, informing on his fellow Jews. Such a person was perceived as being dangerous to the well-being of the society at large. This led to a ruling by the Sages that a moser could be killed in order to protect the community.

    In an illustration of this rule, the Gemara tells of someone who was warned by Rav that he could not inform the government about his neighbor’s straw (as we have learned, tax collectors were seen as generally dishonest during this period, having purchased the right to collect taxes according to their own whims), but who insisted that he was going to do so, in any case. Rav Kahana who was present and saw the interaction between them, stepped forward and killed the man, given his insistence of playing the role of a moser. Recognizing the danger that Rav Kahana now faced as an accused murderer, Rav pointed out to him that with the passing of the Parthian rulers – who were lax in their rule, and allowed autonomous rule for minorities – and the rise of the Sassanian Dynasty – who were much more involved in the day-to-day lives of their subjects, Rav Kahana could be accused of murder. Rav suggested that Rav Kahana move to Israel and study with the great Israeli amora, Rabbi Yohanan, but insisted that he accept upon himself not to ask him questions for a period of seven years.

    The Maharsha explains that Rav’s insistence of Rav Kahana’s acceptance of this limitation on his study may have been a type of penance – not for the act of killing the moser, but for ruling about this case in the presence of his teacher. Therefore, an appropriate penance would be to refrain from asking questions, even in areas that were not clear rulings. The Iyyun Ya’akov suggests otherwise, arguing that Rav was simply instructing his student to accept the traditions of study in Israel, where the accepted method involved discussion rather than questioning.

    Upon his arrival in Israel, Rav Kahana impressed the students in Rabbi Yohanan’s academy, but when he was given a prize seat in the front of the classroom, heeding Rav’s advice, he did not participate in the class discussion. Upon being demoted seven rows, Rav Kahana felt that the demotion was equivalent of the seven years that his teacher had ruled he should remain silent in class, and he once again began to question and offer answers in the classroom.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  18. Bava Kamma 118a-b: Buyer beware

    The Mishna on our daf (page) lists a number of cases where it is forbidden to purchase things because we fear that they may be stolen goods.

    These include, for example:

    Buying wool, milk or kids from shepherds who are watching other people’s flocks.

    Buying fruit or wood from people who are paid to guard an orchard.

    In situations where the owner knows and approves of certain activities, there is no problem with purchasing products.

    Examples of such arrangements are:

    Buying from women who make woolen garments in Yehuda.

    Buying from women who make linen garments in the Galilee.

    Buying calves from women in the Sharon.

    The Mishna rules, however, that in all cases where the purchaser is told to hide what he bought, it is forbidden to purchase, since it is likely stolen property.

    The Gemara quotes a baraita that expands on these rules, explaining, for example, that already sewn woolen clothing can be purchased from shepherds, since we assume that it belongs to them. The general principle taught by the baraita is that anything that the shepherd sells that the owner would notice can be purchased.

    One rule that the baraita mentions is that milk or cheese can be purchased in the desert, but not in a settled area. Rashi explains that since it is difficult to transport these back to the owner, there must be an agreement between the owner and the shepherd allowing the shepherd to keep them; Rav Ovadiah MiBartenura suggests that there may even be an agreement that the shepherd should sell them and give the proceeds to the owner. The Rambam had a different reading, which allowed for purchase of milk and cheese in settled areas and forbidding it in the desert. The explanation for this position is that only in the city will the owner be able to see what the shepherd is doing. In the desert, where the owner cannot properly supervise the shepherd’s activities, we must be more careful about purchasing stolen goods.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

  19. Bava Kamma 119a-b: Buying from a robber

    As we saw on the previous daf (page), our Gemara is discussing how it is forbidden to purchase things that are likely stolen. Our Gemara asks for a ruling that would clarify when it would be permissible again to buy from someone who was known to be a thief. (It is worth noting that there are a number of variant readings to this Gemara – some manuscripts have the question focusing on deriving benefit from the thief; others on collecting outstanding loans from him.) In response, the Gemara offers two opinions: Rav suggests that we must wait until most of what he has is his own; Shmuel rules it is permitted even when only a minority are his own possessions.

    The Meiri understands the question of our Gemara to be asking at what point we can buy from a known thief, and be fairly certain that we are not aiding and abetting criminal acts by purchasing stolen goods. Rav Ovadiah MiBartenura suggests that the case in the Gemara is one where the thief has repented, and the question is not related to the stolen goods themselves as much as when we can derive benefit from the thief’s property.

    Rav’s ruling that we need to wait until the majority of the thief’s possessions belong to him is based on the common ruling about rov – that we follow the majority. Once we reach that point, from a halakhic standpoint we can assume that anything purchased from him is not stolen. Shmuel does not require a majority of his possessions to be his own, since in any case we are not certain that what the thief is selling is actually stolen – it is only a suspicion. In such a case, once we are certain that some of what he owns is not stolen property, we can work with the assumption that what we are buying from him can be presumed to be without problems.

    This essay is based upon the insights and chidushim of Rabbi Steinsaltz as published in the English version of the Koren Talmud Bavli with Commentary by Rabbi Adin Steinsaltz, and edited and adapted by Rabbi Shalom Berger.

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