Babylonian Talmud: Tractate Baba Kamma

Folio 118a

a cow was lying,¹  and a river [subsequently] flooded it, R. Eleazar following his line of reasoning,²  while the Rabbis followed their own view.³

MISHNAH. IF A MAN HAS ROBBED ANOTHER, OR BORROWED MONEY FROM HIM, OR RECEIVED A DEPOSIT FROM HIM⁴  IN AN INHABITED PLACE, HE MAY NOT RESTORE IT TO HIM⁵  IN THE WILDERNESS;⁶  [BUT IF THE TRANSACTION WAS ORIGINALLY MADE] UPON THE STIPULATION THAT HE WAS GOING INTO THE WILDERNESS, HE MAY MAKE RESTORATION EVEN WHILE IN THE WILDERNESS.

GEMARA. A contradiction could be raised [from the following:] 'A loan can be paid in all places, whereas a lost article [which was found], or a deposit cannot be restored save in a place suitable for this'?⁷  — Said Abaye: What is meant⁸  is this: 'A loan can be demanded in any place, whereas a lost article [which was found] or a deposit cannot be demanded save in the proper place.'

[BUT IF THE TRANSACTION WAS ORIGINALLY MADE] UPON THE STIPULATION OF HIS GOING INTO THE WILDERNESS, etc. Is this ruling not obvious? — No, for we have to consider the case where he said to him, 'Take this article in deposit with you as I intend departing to the wilderness,' and the other said to him, 'I similarly intend departing to the wilderness, so that if you want me to return it to you there,⁹  I will be able to do so.

MISHNAH. IF ONE MAN SAYS TO ANOTHER, 'I HAVE ROBBED YOU, I HAVE BORROWED MONEY FROM YOU, I RECEIVED A DEPOSIT FROM YOU BUT I DO NOT KNOW WHETHER I HAVE [ALREADY] RESTORED IT TO YOU OR NOT,' HE HAS TO MAKE RESTITUTION. BUT IF HE SAYS, 'I DO NOT KNOW WHETHER I HAVE ROBBED YOU, WHETHER I HAVE BORROWED MONEY FROM YOU, WHETHER I RECEIVED A DEPOSIT FROM YOU,' HE IS NOT LIABLE TO MAKE RESTITUTION.

GEMARA. It was stated:¹⁰  [If one man alleges:] 'You have a maneh¹¹  of mine,'¹²  and the other says, 'I am not certain about it,'¹³  R. Huna and Rab Judah hold that he is liable,¹⁴  but R. Nahman and R. Johanan say that he is exempt.¹⁵  R. Huna and Rab Judah maintain that he is liable, because where a positive plea is met by an uncertain one, the positive plea prevails, but R. Nahman and R. Johanan say that he is exempt, since money [claimed] must remain in the possession of the holder.¹⁶  We have learnt: BUT IF HE SAYS, 'I DO NOT KNOW WHETHER I HAVE BORROWED MONEY FROM YOU,' HE IS NOT LIABLE TO MAKE RESTITUTION. Now, how are we to understand this? If we say that there was no demand on the part of the plaintiff, then the first clause must surely refer to a case where he did not demand it, [and if so] why is there liability? It must therefore refer to a case where a demand was presented and it nevertheless says in the concluding clause,¹⁷  'HE IS NOT LIABLE to PAY'!¹⁸  — No, we may still say that no demand was presented [on the part of the plaintiff], and the first clause is concerned with one who comes to fulfil his duty towards Heaven.¹⁹  It was indeed so stated: R. Hiyya b. Abbah said that R. Johanan stated: If a man says to another, 'You have a maneh of mine,' and the other says, 'I am not certain about it,' he would be liable to pay²⁰  if he desires to fulfil his duty towards Heaven.²¹

MISHNAH. IF A MAN STOLE A SHEEP FROM THE HERD AND PUT IT BACK [THERE], AND IT SUBSEQUENTLY DIED OR WAS STOLEN, HE WOULD STILL BE RESPONSIBLE FOR IT. IF THE PROPRIETOR KNEW NEITHER OF THE THEFT NOR OF THE RESTORATION, BUT COUNTED THE SHEEP AND FOUND [THE HERD] COMPLETE, [THE THIEF WOULD BE] EXEMPT [IN REGARD TO ANY SUBSEQUENT MISHAP].

GEMARA. Rab said: If the proprietor knew [of the theft], he has similarly to know [of the restoration]; where he had no knowledge [of the theft] his counting exempts [the thief]; and the words [HE] COUNTED THE SHEEP AND FOUND [THE HERD] COMPLETE, refer [only] to the concluding clause.²²  Samuel, however, said: Whether the proprietor knew, or had no knowledge [of it], his counting would exempt [the thief], and the words: [IF HE] COUNTED THE SHEEP AND FOUND [THE HERD] COMPLETE [THE THIEF WOULD BE] EXEMPT, refer to all cases.²³

R. Johanan moreover said: If the proprietor had knowledge [of the theft], his counting will exempt [the thief], whereas if he had no knowledge [of it], it would not even be necessary to count,²⁴  and the words, [HE] COUNTED THE SHEEP AND FOUND [THE HERD] COMPLETE, refer [exclusively] to the first clause.²⁵  R. Hisda, however, said: Where the proprietor had knowledge [of the theft], counting will exempt [the thief], whereas where he had no knowledge [of the theft], he would have to be notified [of the restoration], and the words, [HE] COUNTED THE SHEEP AND FOUND [THE HERD] COMPLETE, refer [only] to the first clause.²⁵

Raba said:

1. But the robber did not actually take possession of the cow in any other way, e.g., by 'pulling it'.
2. That the field entered into the possession of the robber, as would be the case with any other misappropriated object, so that by virtue of his becoming possessed of the field, the cow is supposed to have similarly entered into his possession in accordance with Kid. I, 5 and supra p. 49
3. That land is not subject to the law of robbery and does not enter into the possession of a robber, and as no independent act was done to take possession of the cow he could not be held responsible in any way regarding it.
4. Lit., 'He (i.e. the latter) deposited with him.'
5. Against his will.
6. On account of the insecurity there.
7. Is this not against the teaching of the Mishnah?
8. By the passage quoted.
9. Which prima facie means 'if you will be in need of money there;' it was therefore made known in the Mishnah that he may compel the creditor to accept payment there.
10. Keth. 12b; B.M. 97b and 116b.
11. A hundred zuz; v. Glos.
12. I.e., 'You have to restore me a maneh which you borrowed from me' or 'which was deposited with you'.
13. I.e., 'whether you lent me' or 'deposited with me anything at all'.
14. To pay the maneh.
15. He would only have to swear to confirm his plea that he is not certain about it (Rashi).
16. I.e., the defendant.
17. Where the doubt was not as to payment but as to the initial liability.
18. Is this not in conflict with the view of R. Huna and Rab Judah?
19. And since he is certain about the initial liability and only in doubt as to whether it was cancelled by payment, he is liable to make restoration for Heaven's sake even though there was no demand on the part of the plaintiff, whereas in the second clause where the doubt was regarding the initial liability it would not be so; cf. B.M. 37a and supra p. 600.
20. Provided there was a demand, for otherwise it would not be so since the initial liability is in doubt.
21. Though he cannot be forced by civil law to do so according to the view of R. Johanan himself.
22. Where the proprietor had no knowledge of the theft.
23. Whether the proprietor had knowledge of the theft or not.
24. Cf. however supra 57a.
25. Dealing with a case where the proprietor most probably knew of the theft.

The reason of R. Hisda is because [living things] have the habit of running out¹  into the fields.²  But did Raba really maintain this? Has not Raba said: If a man saw another lifting up a lamb of his herd and picked up a clod to throw at him and did not notice whether he put back the lamb or did not put it back, and [it so happened that] it died or was stolen [by somebody else], the thief³  would be responsible for it. Now, does this ruling not hold good even where the herd had subsequently been counted?⁴  No, only where the proprietor had not yet counted it.

But did Rab really make this statement?⁵  Did not Rab Say: If the thief restored [the stolen sheep] to a herd which the proprietor had in the wilderness, he would thereby have fulfilled his duty!⁶  — Said R. Hanan b. Abba: Rab would accept the latter ruling in the case of an easily recognisable lamb.⁷

May we say that they⁸  differed in the same way as the following Tannaim: If a man steals a lamb from the herd, or a sela'⁹  from a purse, he must restore it to the same place from which he stole it. So R. Ishmael, but R. Akiba said that he would have to notify the proprietor.¹⁰  Now, it was presumed that both parties concurred with the statement of R. Isaac who said¹¹  that a man usually examines his purse at short intervals. Could it therefore not be concluded that they¹²  referred to the case of a sela' the theft of which is known to the proprietor¹³  so that they¹²  differed in the same way as Rab¹⁴  and Samuel?¹⁵  — No, they referred to the case of the lamb the theft of which is probably unknown to the owner¹⁶  and they¹²  thus differed in the same way as R. Hisda¹⁷  and R. Johanan.¹⁸

R. Zebid said in the name of Raba: Where the article¹⁹  was stolen from the actual possession of the proprietor, there is no difference of opinion between them²⁰  as in such a case they would adopt the view of R. Hisda;²¹  but here they²⁰  differ on a case where a bailee misappropriated [a deposit] in his own possession and subsequently restored it to the place from which he misappropriated it, R. Akiba holding that [when he misappropriated the deposit] the bailment came to an end,²²  whereas R. Ishmael held that the bailment did not [thereby] come to an end.²³

May we still say that [whether or not] counting exempts is a question at issue between Tannaim; for it was taught: If a man robbed another but made [up for the amount by] inserting it in his settlement of accounts, it was taught on one occasion that he thereby fulfilled his duty, whereas it was taught elsewhere that he did not fulfil his duty.²⁴  Now, as it is generally presumed that all parties concur with the dictum of R. Isaac who said that a man usually examines his purse from time to time, does it not follow [then] that the two views differ on this point, viz., that the view that he fulfilled his duty implies that counting secures exemption, whereas the view that he did not fulfil his duty implies that counting does not secure exemption? — It may however be said that if they were to accept the saying of R. Isaac they would none of them have questioned that counting should secure exemption; but they did in fact differ regarding the statement of R. Isaac, the one master²⁵  agreeing with the statement of R. Isaac and the other master²⁶  disagreeing. Or if you wish I may alternatively say that all are in agreement with the statement of R. Isaac, and still there is no difficulty, as in the former statement²⁵  we suppose the thief to have counted the money and thrown it into the purse of the other party,²⁷  whereas in the latter statement²⁸  we suppose him to have counted it and thrown it into the hand of the other party.²⁹  Or if you wish, I may alternatively still say that in the one case²⁸  as well as in the other³⁰  the robber counted the money and threw it into the purse of the other party,²⁷  but while on the latter case²⁸  we suppose some money³¹  to have been in the purse,³²  the former³⁰  deals with a case where no other money was in the purse.

MISHNAH. IT IS NOT RIGHT TO BUY EITHER WOOL OR MILK OR KIDS FROM THE SHEPHERDS,³³  NOR WOOD NOR FRUITS FROM THOSE WHO ARE IN CHARGE OF FRUITS.³³  IT IS HOWEVER PERMITTED TO BUY FROM HOUSE-WIVES WOOLLEN GOODS IN JUDEA,³⁴  FLAXEN GOODS IN GALILEE OR CALVES IN SHARON,³⁵  BUT IN ALL THESE CASES, IF IT WAS STIPULATED BY THEM THAT THE GOODS ARE TO BE HIDDEN, IT IS FORBIDDEN [TO BUY THEM]. EGGS AND HENS MAY, HOWEVER, BE BOUGHT IN ALL PLACES.

GEMARA. Our Rabbis taught: It is not right to buy from shepherds either goats or kids or fleeces or torn pieces of wool, though it is allowed to buy from them made-up garments, as these are certainly theirs.³⁶  It is Similarly allowed to buy from them milk and cheese in the wilderness³⁴  though not in inhabited places.³⁷  It is [also] allowed to buy from them four or five sheep,³⁸  four or five fleeces, but neither two sheep nor two fleeces. R. Judah Says: Domesticated animals may be bought³⁹  from them but pasture animals may not be bought from them. The general principle is that anything the absence of which, if it is sold by the shepherd, would be noticed by the proprietor, may be bought from the former, but if the proprietor would not notice it, it may not be bought from him.⁴⁰

The Master stated: 'It is [also] allowed to buy from them four or five sheep, four or five fleeces.' Seeing that it has been said that four may be bought, is it necessary to mention five? — Said R. Hisda: Four may be bought out of five.⁴¹  Some however say that R. Hisda stated that four may be bought out of a small herd and five out of a big herd. But the text itself seems to contain a contradiction. You say: 'Four or five sheep, four or five fleeces', implying that only four or five could be bought but not three, whereas when you read in the concluding clause: 'But not two sheep', is it not implied that three sheep may be bought? — There is no contradiction, as the latter statement refers to fat animals⁴²  and the former to lean ones.⁴³

'R. Judah Says: Domesticated animals may be bought from them but pasture animals may not be bought from them.' It was asked: Did R. Judah refer to the opening clause⁴⁴  in which case his ruling would be the stricter,⁴⁵  or perhaps to the concluding clause,⁴⁶  in which case it would be the more lenient?⁴⁵  Did he refer to the opening clause⁴⁴  and mean to be more stringent, so that when it says, 'it is allowed to buy from them four or five sheep,' the ruling is to be confined to domesticated animals, whereas in the case of pasture animals even four or five should not be bought? Or did he perhaps refer to the concluding clause⁴⁶  and mean to be more lenient, so that when it says 'but neither two sheep nor two fleeces', this ruling would apply only to pasture animals, whereas in the case of domesticated animals even two may be bought? — Come and hear: R. Judah Says: Domesticated animals may be bought from them whereas pasture animals may not be bought from them, but in all places four or five sheep may be bought from them.⁴⁷

1. So that where the proprietor did not know of the theft he should be notified about the restoration so as to take more care of his sheep.
2. Cf. supra 57a.
3. Who first lifted up the lamb.
4. Thus proving that counting is not sufficient to exempt the thief where the owner had knowledge of the theft.
5. That where the proprietor knew of the theft he has similarly to know of the restoration, and where he had no knowledge of the theft counting at least would be required.
6. Is this ruling not in conflict with the statement made above by Rab?
7. Lit., spotted'. I.e., the presence of which is conspicuous, so that the shepherd who was looking after the flock in the wilderness would surely notice its restoration.
8. I.e., Rab and Samuel.
9. A coin; v. Glos.
10. B.M. 40b.
11. Ibid. 21b.
12. I.e., R. Ishmael and R. Akiba.
13. For he had most probably meanwhile examined his purse and found a sela' short; the same was the case regarding the lamb of the theft of which the proprietor had knowledge.
14. Who was thus preceded by R. Akiba.
15. Who was on the other hand preceded by R. Ishmael.
16. And so was the case regarding the sela'.
17. V. supra p. 707.
18. R. Johanan following R. Ishmael, and R. Hisda following R. Akiba.
19. According to cur. edd. the reading is 'the bailee was stealing'; v. however Rashi whose amendment is followed.
20. V. p. 708, n. 10.
21. That he must (in all cases) notify the proprietor for the reason that living things have the habit of running out into the fields.
22. So that the restoration must be made to the proprietor himself; cf. also supra 108b.
23. And the restoration is therefore legally valid.
24. B.M. 64a.
25. Taking the restoration to be good.
26. Maintaining that the duty of restoration has not been fulfilled.
27. Who surely counted it before long.
28. V. p. 709, n. 8.
29. Who might not have counted it at all.
30. V. p. 709, n. 7.
31. Of uncertain amount.
32. In which case the proprietor even after counting the money could hardly have realised the restoration.
33. As we apprehend that these articles were not their own but were misappropriated by them.
34. As they were authorised there to do so.
35. The name of the plain extending along the Mediterranean coast from Jaffa to Carmel; cf. Men. 87a. [The sheep there were plentiful and cheap owing to the rich pasturage.]
36. For even if the wool was not theirs ownership was transferred by the change in substance.
37. Where they are supposed to bring the dairy produce to the proprietors.
38. As the absence of so many is too conspicuous and the shepherd would hardly rely upon the allegation of accidental loss occasioned by beasts.
39. As the proprietor knows the exact number of such animals.
40. Tosef. B.K., XI.
41. I.e., the proportion should be as four to five; MS.M. adds: five may be bought even out of a large herd.
42. In which case the absence of even three will be noticed by the proprietor.
43. Where the absence of three might not be noticed.
44. I.e., that four or five sheep may be bought.
45. The explanation follows presently.
46. That two may not be bought.
47. V. p. 710, n. 13.