Babylonian Talmud: Tractate Baba Kamma

Folio 69a

but if they merely said to him, 'You are liable to pay him,' and after that he slaughtered or sold the animal, he would be liable to pay four-fold or five-fold payment, the reason being that since they have not pronounced final sentence upon the matter he is still a thief?¹  — No, its application is necessary where they have as yet merely said to him, 'You are liable to pay him'.

The above text states:²  'R. Johanan said: If a robber misappropriated an article and the owner has not abandoned hope of recovering it neither of them is able to consecrate it: the one³  because it is not his, the other⁴  because it is not in his possession.' Could R. Johanan really have said this? Did not R. Johanan say⁵  that the halachah is in accordance with an anonymous Mishnah; and we have learnt:⁶  'In the case of a vineyard in its fourth year, the owners used to mark it with clods of earth', the sign implying an analogy to earth: just as in the case of earth a benefit may ensue from it,⁷  so also the fruit of this vineyard⁸  will after being redeemed be permitted to be enjoyed. 'That of 'orlah⁹  used to be marked with potsherds', the sign indicating a similarity with potsherds: just as in the case of potsherds no benefit ensues from them,¹⁰  so also the fruit of 'orlah⁹  could not be enjoyed for any use whatever. 'A field of graves used to be marked with lime', the sign having the colour of white, like corpses. 'The lime was dissolved in water and then poured out' so as to make its colour more white. 'R. Simeon b. Gamaliel said: These practices were recommended only for the Sabbatical year,' when the fruits on the trees were ownerless;¹¹  'for in the case of the other years of the Septennate,¹²  you may let the wicked stuff themselves with it till they die.¹³  The virtuous however used to set aside money and to declare that whatever has been gleaned from this [vineyard] shall be redeemed by this money.'¹⁴  Does not this contradict R. Johanan? Nor can you urge in reply that the Tanna who recorded the practice of the virtuous was R. Simeon b. Gamaliel,¹⁵  [and R. Johanan might therefore not have concurred with this anonymous view stated by a single Tanna] for did not Rabbah b. Bar Hanah say¹⁶  that R. Johanan stated that whenever R. Simeon expressed a view in a Mishnah the halachah is in accordance with him, with the exception of his view regarding 'Suretyship'.¹⁷  'Sidon'¹⁸  and the 'last [case dealing with] evidence'?¹⁹  — I may reply that you should not read,²⁰  'whatever has been gleaned'²¹  but read 'whatever will be gleaned'²²  from this [vineyard]. But could R. Johanan have said this: Did not R. Johanan say that the virtuous and R. Dosa said the same thing, and, as we know, R. Dosa definitely stated 'whatever has been gleaned'?²¹  For was it not taught:²³  R. Judah says: In the morning the owner of the field should get up and say 'whatever the poor shall glean during the day should be considered ownerless²⁴  [from the present moment]'.²⁵  whereas R. Dosa says: It is at eveningtide that he should say, 'Whatever the poor have gleaned shall be ownerless'!²⁶  — I must transpose the view of R. Judah to R. Dosa²⁷  and the view of R. Dosa to R. Judah. But why transpose this teaching, and not transpose instead²⁸  the statement of R. Johanan, assigning to 'the virtuous and to R. Judah the same thing'? — It may, however, be said that it was impossible not to transpose this teaching,²⁹  since in this teaching²⁹  it is stated that R. Judah upholds bererah³⁰  and we find R. Judah holding in other places that there is not bererah as we have learnt³¹

1. Subject to the law of paying four-fold and five-fold payments.
2. Supra p. 396.
3. The robber.
4. The owner.
5. Shab. 46a.
6. M.Sh. V, I.
7. In time, as after tilling, sowing and reaping.
8. Cf. Lev, XIX, 24.
9. I.e., during the first three years when the fruits are totally forbidden in accordance with Lev. XIX, 23.
10. As nothing could grow in them properly.
11. Cf. Lev. XXV, 6-7.
12. When the fruits were not ownerless.
13. As it was wrong for passers-by to misappropriate the fruits, they need not be warned by all these signs to abstain from using them in the forbidden manner. [This last passage occurs only in the Jerusalem version of the Mishnah, not in the Babylonian.]
14. V. p. 396, n. 8.
15. Who made the immediately preceding statement.
16. B.M. 38b.
17. In B.B. 174a.
18. In Git. 77a.
19. In Sanh. 31a.
20. In the words of the 'virtuous'.
21. In the past.
22. In the future, so that the redemption will take effect retrospectively from the moment this statement was made, when the gleanings were still in the possession of the owner.
23. Tosef. Pe'ah II, 4.
24. As each two ears falling together may be gleaned by the poor who need not tithe them, but not so is the case regarding three ears falling together. Not all the poor, however, know this distinction. It is therefore meritorious on the part of the owner to abandon those which are gleaned by the poor unlawfully.
25. I.e., retrospectively.
26. [From this it follows that the declaration of the virtuous was likewise related to the past.]
27. So that it was R. Dosa who said 'whatever the poor shall glean.'
28. Of 'the virtuous and R. Dosa.'
29. Where R. Judah and R. Dosa differ.
30. I.e., Retrospective designation of that which was abandoned at a time when it was not defined; cf. also supra 51b.
31. Tosef. Dem. VIII, 5.

: 'If a man buys wine from among the Cutheans¹  [and it was late on Friday towards sunset and he has no other wine for the Sabbath]²  may say 'two logs [out of a hundred³] which I intend to set aside are terumah,⁴  ten are the first tithe⁵  and nine the second tithe,' and these he may redeem [upon money anywhere in his possession],⁶  and he may commence drinking at once. So R. Meir.⁷  But R. Judah, R. Jose and R. Simon prohibit this.⁸  To this I may rejoin: When all is said and done, why have you transposed [the views mentioned in the Baraitha]? Because R. Judah would otherwise contradict R. Judah! But would not now R. Johanan contradict R. Johanan? For you stated according to R. Johanan that we should not read 'whatever has been gleaned'⁹  but read 'whatever will be gleaned',¹⁰  thus proving that he upholds bererah¹¹  whereas in fact R. Johanan does not uphold bererah. For did not R. Assi say¹²  that R. Johanan stated that brothers dividing an inheritance are like purchasers¹³  [in the eye of the law], so that they will have to restore the portions to one another on the advent of the jubilee year?¹⁴  — We must therefore still read¹⁵  'whatever has been gleaned',⁹  and [say that] R. Johanan¹⁶  found another anonymous Mishnah, as we have indeed learnt: ONE WHO STEALS [ARTICLES ALREADY STOLEN] IN THE HANDS OF A THIEF NEED NOT MAKE DOUBLE PAYMENT.¹⁷  Why should this be? We grant you that he need not pay the first thief, [since Scripture says:] And it be stolen out of the man's house,¹⁸  [implying] 'but not out of the house of the thief'. But why not pay the owner? We must say that this shows that the one¹⁹  is not entitled to payment because the stolen article is not his, and the other one²⁰  is not entitled to payment as the article is not in his possession.²¹  — But what induced him²²  to follow that anonymous Mishnah?¹⁷  Why should he not act in accordance with the anonymous Mishnah dealing with the virtuous?²³  — Because he was supported by the verse: And when the man shall sanctify his house to be holy unto the Lord,²⁴  just as his house is in his possession,²⁵  so anything also which is in his possession can be sanctified.²⁶

Abaye said: If R. Johanan had not stated that the virtuous²⁷  and R. Dosa²⁸  said the same thing,²⁹  I might have said that while the virtuous accepted the view of R. Dosa, R. Dosa did not uphold the practice of the virtuous. The virtuous accepted the view of R. Dosa; for if the Rabbis made things easier for a thief,³⁰  need we say they did so for the poor?³¹  But R. Dosa did not uphold the practice of the virtuous: for it was only for the poor³¹  that the Rabbis made things easier, whereas for the thief they did not make things easier.³⁰  Raba said: Had R. Johanan not stated that the virtuous and R. Dosa said the same thing, I should have said that the Tanna followed by the virtuous was R. Meir. For did not R. Meir say³²  that the [second] tithe³³  is Divine property,³⁴  and even so the Divine Law placed it in the owner's possession in respect of redemption, as written: And if a man will redeem aught of his tithe, he shall add unto it the fifth part thereof,³⁵  the Divine Law thus designating it 'his tithe' and ordering him to add a fifth.³⁶  The same applies to the vineyard in the fourth year, as can be derived from the occurrence of the term 'holy' there³⁷  and in the case of the tithe.³⁸  For it is written here 'shall be holy to praise',³⁷  and it is written in the case of tithe, 'And all tithe of the land whether of seed of the land or of the fruit of the tree it is holy':³⁸  just as the 'holy' mentioned in connection with tithe although it is divine property, has nevertheless been placed by the Divine Law in the possession of the owner for the purpose of redemption, so also the 'holy' mentioned in connection with a vineyard of the fourth year, although the property is not his own, has been placed by the Divine Law in his possession for the purpose of redemption; now seeing that even when it is in his possession it is not his and yet he may redeem it; hence he may be able to redeem it [also when out of his possession]. But in the case of the gleaning [of ears of corn] which is his own property,³⁹  it is only when it is [still] in his [own] possession that he is able to declare it ownerless, whereas when not in his possession he should not be entitled to declare it ownerless.⁴⁰

Rabina said: Had R. Johanan not stated that the virtuous and R. Dosa said the same thing, I should have said that the Tanna stating the case of the virtuous was R. Dosa, so that this anonymous Mishnah would not refute the view of R. Johanan, for R. Johanan

1. And has thus to set aside both the priestly portion, called terumah, and the first tithe for the Levite and the second tithe to be redeemed or partaken of in Jerusalem.
2. And without having the time to separate the portions to be set aside.
3. Logs (v. Glos.) which he bought.
4. For the priests, (v. Glos.).
5. For the Levites, v. Num. XVIII, 21.
6. Cf. Deut. XIV, 22-25.
7. Maintaining retrospective designation, so that the wine set aside after Sabbath for the respective portions will be considered the very wine which was destined at the outset to be set aside.
8. As they maintain no retrospective designation which would make the wine drunk the unconsecrated and that which remained the part originally consecrated. [This shows that R. Judah does not uphold Bererah, thus necessitating the transposition of the Baraitha in Pe'ah.]
9. V. p. 398, n. 7.
10. V. p. 398, n. 8.
11. V. p. 398, n. 16.
12. Bez. 37b; Git. 25a and 48a.
13. For the portion chosen by each brother for himself could not be considered as having thus retrospectively become the very inheritance designated for him.
14. In accordance with Lev. XXV, 13.
15. In the words of the 'virtuous'.
16. [In maintaining that a consecration made by the owner even before renunciation is not valid, in opposition to the principle underlying the declaration of the 'virtuous'.]
17. Supra p. 363.
18. Ex. XXII, 6.
19. The first thief.
20. The owner.
21. This proves that the lack of possession is a defect in the very ownership, and if an article out of possession is not subject to double payment it could neither be subject to the law of consecration and alienation which are incidents of ownership.
22. V. I.e., R. Johanan.
23. V. p. 396, n. 8.
24. V. Lev. XXII, 14.
25. V. p. 395, n. 8.
26. Excluding thus an owner consecrating movables out of his possession; and because of this Scriptural authority R. Johanan deviated from the view of the 'virtuous'.
27. Dealing with the vineyard in the fourth year misappropriated by passers by.
28. Dealing with the gleaning of the poor.
29. V. supra p. 398.
30. To safeguard him from partaking of forbidden fruits.
31. Who are not out to commit theft and should consequently the more so be safeguarded from partaking of produce that has not been tithed.
32. Kid. 24a.
33. To be partaken of in Jerusalem, cf. Deut. XIV, 22-26.
34. So that the original owner is but an invitee without possessing any legal ownership.
35. Lev. XXVII, 31.
36. Whereas one redeeming the second tithe of another person does not add a fifth.
37. Lev. XIX, 24.
38. Ibid. XXVII, 30.
39. In the case of each three ears falling together.
40. [Thus, had not R. Johanan said that the virtuous and R. Dosa said the same thing, it could rightly be argued that the virtuous would not apply their principle to the gleaning.]