Two people are holding onto a tallit – each one claiming he found it. Each one says it’s all mine. The mishna rules that each one swears that no less than half is his and they split it (or sell it and split the value). The gemara struggles with the double language (“I found it” and “it’s all mine”) and suggests that either there is only one case here and the double language is coming to teach that if you find something with your eyes, without physically taking it, you have not acquired any rights to it. The second explanation given is that there are 2 cases: one regarding a lost item and one regarding a purchased item that each side claims he purchased it however the seller gave it to one and not the other (even though both paid the money). Comparisons are then made to other tannitic debates regarding money claimed by two people in an attempt to show who the tanna of our mishna sides with; however the gemara rejects the comparisons as it claims the cases are not similar.
Different situations are described where the seller could possibly be selling stolen items and it would be then forbidden to purchase them from him/her. The masechet ends with a description of what materials workers are allowed to keep for themselves and what parts they need to return, alluding to the fact that in regular everyday situations, one could become a thief just by not being careful enough.
If someone stole someone’s land and it got destroyed by an overflowing river, does he return the land as is since land does not have the same laws as movable property and is considered something that “can’t be stolen”. Or do we say that land is treated the same as movable property and he needs to return the value of what he stole. Does one need to return stolen or borrowed items to the owner in a city or can he return them in an uninhabited place (unguarded, less safe)? Claims where the borrower/robber/watchman is unsure of his claim – whether or not he paid is back – are discussed. It depends on what the counter claim was. If one steals, can one return the item without the owner knowing? And if he does and the animal dies, is he responsible to replace it with a new one? Does it depend on whether or not the owner knew it was stolen in the first place? There are certain people that you can’t buy certain items from because there is a strong reason to believe they are stolen. It may also depend on the quantity they are selling.
Study Guide Bava Kamma 118
Laws relating to those who pass on information about other people’s property to non Jews who are looking to take it for themselves – is this considered theft? On what circumstances does it depend? The famous story of the showdown between Rav Kahana and Rabbi Yochanan when Rav Kahana came to Israel from Babylonia is told in the context of this halacha as a case of one who was going to turn in property of another precipitated Rav Kahana’s move. This story highlights the dangers of misjudging others, holding oneself in high regard and also highlights the power struggle between Babylonia and Israel, particularly in the second generation of amoraim, in terms of determining where the real center of authority is.
The rabbis instituted takanat hashuk to protect buyers from responsibility from buying stolen items. The takana is that if someone claims that the item is theirs, they can take it back but need to reimburse them the amount that they paid for the item. Does this apply also in the case where the thief was caught? Can we always believe the original owner when he claims it was stolen? What other evidence does their need to be to allow him to take the item he claims is his? If two people are walking and one is losing his expensive item and the other dumps his item to help the other save his more expensive item – if he does it without being asked, he can only demand back money for his time but not for the item he dumped. The gemara questions why we don’t assume that the first item (the expensive one) was already hefker (ownerless) as the owner knew if would be gone in a minute and gave up ownership of it), in which case the other one could take it as his own. VArious braitot are brought which seemingly contradict each other regarding items that are about to be lost – and the gemara reconciles them.
More laws relating to dealings with non Jews – do you need to return items to non Jews, do you need to correct a mistake that he made in your favor? Rava brings 5 laws that relate to how we view the halacha of Shmuel that the law of the land is the law – if a non Jewish regime takes money from one person when they weren’t the ones who owed the money (or not by Jewish law), is it considered that they own the money or not? The mishna says if someone steals and gives you a different item in return, if the owner despaired of getting it in return, you can keep the item. The mishna doesn’t distinguish between theft and robbery and it can be derived from the mishna that if we don’t know that the owners despaired, we assume they haven’t. This (and a another mishna that is brought) seems to contradict Raba’s reading of a different argument in masechet keilim between Rabbi Shimon and the rabbis who each think that there is reason to distinguish between theft and robbery in this issue. various answers are brought, among them they introduce a new opinion of Rebbi who equates the two. The mishna also brought a a swarm of bees who fly into someone else’s property and that is discussed. A woman and minor are believed in this case. As a result, the gemara gets into a discussion of why they are believed in this case when in general we don’t accept their testimony.
If someone doesn’t show up in court or says the document is false (after it was proven to be a good document), how much time to you give someone before you allow the other side to demand the money from his property? What does it depend on? An adrachta is the document they write allowing him to demand the money from the other person’s property. Once this is written, the person needs to be informed that is has been written. Details of how one is informed and how long we need to wait to ensure he is informed are discussed. When a subpoena is send with a woman or neighbor, under what circumstances, can we assume they relayed the message and when can we assume that they didn’t think they were being relied on to deliver it and maybe never did? There are certain times of year and times of the week when people are busy and therefore shouldn’t be subpoenaed to court. The next mishna deals with non Jewish tax collectors and various things one can do to avoid paying taxes. When questioned by Shmuel’s statement dina demalchuta dina, the law of the land is the law, the gemara differentiates between tax collectors who collect by law and those who don’t. THe another case is brought which leads to the question of whether stealing from a non Jew is considered stealing or not.
The different opinions of amoraim regarding whether or not the owner gave up or whether an inheritor is considered like a buyer (that if the owner gives up on getting the item back and it changes hands from the robber to another person, he acquires the item legally) are questioned based on tannaitic sources on this topic. Since the tannaitic sources raise the issue of cases in which minors would or wouldn’t be responsible, the issue of whether one can have a judgement without one side appearing is raised (since a minor cannot appear in court). There are different opinions about the matter and the amoraim explain the circumstances under which one can have a court session without the other side appearing.
The case of stealing from a convert who subsequently dies and the money as well as the sacrifice is brought to the kohen. Cases are brought where the money and the sacrifice are brought to 2 different rotations of kohanim and what is done is discussed and argued depending on the situation. The asham brought after stealing is compared to the asham brought for meila – misuse of consecrated property. The tenth perek starts with a discussion of someone who eats the stolen item from the robber – can the owner demand the money back from the one who consumed it or only from the robber himself. It depends on whether or not the owner has given up on getting his item back or not. In the case where he gave up, the owner cannot demand it from the one who consumed it as the combination of the owner having given up and the change of ownership allows it to change ownership and therefor the original owner has no claim with the third party – he can only claim it from the robber. But if he had not given up, then the one who consumed is considered as if he stole it from the original owner as it was still in his possession at the time of consumption.
If one steals from a convert, lies about it and then admits he lied, but the convert dies and has no heirs, one must return the item to the kohanim who are working on that week’s rotation, mishmar. The gemara discusses a range of halachot that deal with when things have to go to the kohanim on that week’s mishmar and what are cases where it can be given to a different kohen. Since the returning of the item to the kohen is called by the Torah “an asham,” a word that is also used in general to mean the guilt offering, therefore Rava brings various halachot that treat this payment with the same criteria as the guilt offering for example, it can’t be paid at night just as sacrifices can’t be brought at night. The gemara ends with a discussion about whether the payment to the kohanim is viewed as inheritance (they are in place of the convert’s inheritors) or as a gift and the ramifications are mentioned. The gemara concludes that is it viewed as a gift.