Babylonian Talmud: Tractate Baba Kamma

Folio 94a

of Aspurak taught: 'Beth Shammai prohibit the produce to be used as sacrifices, whereas Beth Hillel permit it.' Now, what was the reason of Beth Shammai? — Because it is written gam, to include their transformation. But Beth Hillel maintains that hem implies only them and not their transformations. Beth Shammai, however, maintains that though hem is written, what it implies is 'them and not their offsprings'. Beth Hillel still argue that you can understand both points from it: 'them and not their transformations, them and not their offsprings.' But how could Beth Hillel explain the insertion of gam? Gam offers a difficulty according to the view of Beth Hillel.

What about R. Eliezer b. Jacob? — As it was taught:¹  R. Eliezer b. Jacob says: If one misappropriated a se'ah²  of wheat and kneaded it and baked it and set aside a portion of it as hallah,³  how would he be able to pronounce the benediction?⁴  He would surely not be pronouncing a blessing but pronouncing a blasphemy, as to such a one could be applied the words: The robber pronounceth a benediction [but in fact] contemneth the Lord.⁵

What about R. Simeon b. Eleazar? — As it was taught: This principle was stated by R. Simeon b. Eleazar: In respect of any improvement carried out by the robber, he would have the upper hand; if he wishes he can take the improvement, or if he wishes he may say to the plaintiff: 'Here take your own.' What is meant by this [last] statement?⁶  — Said R. Shesheth: This is meant: Where the article has been improved, the robber may take the increased value, but where it has deteriorated he may say to him: 'Here, take your own,' as a change leaves the article in its previous status. But if so why should it not be the same even in the case where the article was improved? We may reply, in order to make matters easier for repentant robbers.⁷

What about R. Ishmael? — It was taught:⁸  [Strictly speaking,] the precept of Pe'ah⁹  requires that it should be set aside from standing crops. If, however, the owner did not set it aside from standing crops he should set it aside from the sheaves; so also if he did not set it aside from the sheaves he should set it aside from the heap [in his store] so long as he has not evened the pile. But if he had already evened the pile¹⁰  he would have first to tithe it and then set aside the Pe'ah for the poor. Moreover, In the name of R. Ishmael it was stated that the owner would even have to set it aside from the dough and give it to the poor.¹¹  Said R. papa to Abaye: Why was it necessary to repeat and bring together all these Tannaitic statements for the sole purpose of making us know that they concurred with Beth Shammai?¹²  — He replied: It was for the purpose of telling us that Beth Hillel and the Beth Shammai did probably not differ at all on this matter. But Raba said: What ground have we for saying that all these Tannaim follow one view? Why not perhaps say that R. Simeon b. Judah meant his statement there¹³  to apply only to the case of dyeing on account of the fact that the colour could be removed by soap, and so also did Beth Shammai mean their view there to apply only to a religious offering because it looks repulsive, or again that R. Eliezer b. Jacob meant his statement there to apply only to a benediction on the ground that it was a precept performed by the means of a transgression,¹⁴  and so also did R. Simeon b. Eleazar mean his view there to apply only to a deterioration which can be replaced, or again R. Ishmael meant his view there to apply only to the law of Pe'ah, on account of the repeated expression. 'Thou shalt leave'?¹⁵  If however you argue that we should derive the law¹⁶  from the latter case,¹⁷  [it might surely be said that] gifts to the poor are altogether different,¹⁸  as is shown by the question of R. Jonathan. For R. Jonathan asked concerning the reason of R. Ishmael: 'Was it because he held that a change does not transfer ownership, or does he as a rule hold that a change would transfer ownership, but here it is different on account of the repeated expression, Thou shalt leave'!¹⁹

But if you find ground for assuming that the reason of R. Ishmael was because a change does not transfer ownership, why then did the Divine Law repeat the expression 'Thou shalt leave'?¹⁵  Again, according to the Rabbis, why did the Divine Law repeat the expression 'Thou shalt leave'? — This [additional] insertion was necessary for that which was taught:²⁰  If a man after renouncing the ownership of his vineyard gets up early on the following morning and cuts off the grapes, he will be subject to the laws of Peret, 'Oleloth, Forgetting and Pe'ah,²¹  but will be exempt from tithes.

Rab Judah said that Samuel stated that the halachah is in accordance with R. Simeon b. Eleazar.²²  But did Samuel really say so? Did not Samuel state that assessment of the carcass is made neither in cases of theft nor of robbery, but only of damage?²³  I grant you that according to Raba who said that the statement made there by R. Simeon b. Eleazar related only to a deterioration where a recovery would still be possible, there would be no difficulty since Samuel in his statement that the halachah is in accordance with R. Simeon b. Eleazar [who holds] that a change leaves the article in its previous status, referred to the case of deterioration where a recovery would still be possible, whereas the statement made there²³  by Samuel that assessment of the carcass is made neither in the case of theft nor of robbery but only of damage would apply to deterioration where no recovery seems possible. But according to Abaye who said that the statement made by R. Simeon b. Eleazar [also] referred to deterioration where a recovery is no more possible, how can we get over the contradiction? — But Abaye might read thus: Rab Judah said that Samuel stated:

1. Cf. Sanh. 6b.
2. V. Glos.
3. I.e., the priestly portion set aside from dough. cf. Num. XV, 19-21.
4. According to Asheri on Ber. 45a it refers to the grace over the meal.
5. Ps. X. 3; [E.V.: And the covetous renounceth, yea, contemneth the Lord. In spite of the many changes the wheat had undergone it is still not his and not fit to have a blessing uttered over it.]
6. For in the case of improvement it is surely not in the interests of the robber to plead, 'Here is thine before thee.'
7. Cf. supra p. 383 and infra 547.
8. Sanh. 68a; Mak. 16b.
9. 'The corners of the field', cf. Lev. XIX. 9.
10. When the grain becomes subject to the law of tithing; cf. Ber. 40b and Ma'as. I, 6.
11. In spite of the many changes which had been made.
12. Whose views have generally not been accepted; cf. 'Er. 13b.
13. Regarding the dyeing of the wool which was subject to the law of the first of the fleece to be set aside for the priest.
14. v. Ber. 47b.
15. Lev. XIX. 10 and XXIII, 22 — implying in all circumstances.
16. That change does not transfer ownership.
17. I.e., from the law of Pe'ah.
18. [Adreth. S., Hiddushim, improves the text by omitting: 'If however … different.']
19. [This concludes Raba's argument. V. Adreth, loc. cit.]
20. For notes v. supra pp. 148-9.
21. On account of the repeated 'Thou shalt leave'.
22. That in cases of deterioration the robber will be entitled to say. 'Here there is thine before thee.'
23. Explained supra p. 44.

They said that the halachah is in accordance with R. Simeon b. Eleazar though Samuel himself did not agree with this.

R. Hiyya b. Abba said that R. Johanan stated that according to the law of the Torah a misappropriated article should even after being changed be returned to the owner in its present condition, as it is said: He shall restore that which he took by robbery¹  — in all cases. And should you cite against me the Mishnaic ruling,²  my answer is that this was merely an enactment for the purpose of making matters easier for repentant robbers.³  But did R. Johanan really say this? Did R. Johanan not say⁴  that the halachah should be in accordance with an anonymous Mishnah, and we have learnt: 'If the owner did not manage to give the first of the fleece to the priest until it had already been dyed, he is exempt'?⁵  — But a certain scholar of our Rabbis whose name was R. Jacob said to them: 'This matter was explained to me by R. Johanan personally, [that his statement referred only to a case] where, e.g., there were misappropriated planed pieces of wood out of which utensils were made, as after such a change the material could still revert to its previous condition.⁶

Our Rabbis taught: 'If robbers or usurers [repent and of their own free will] are prepared to restore [the misappropriated articles], it is not right to accept [them] from them, and he who does accept [them] from them does not obtain the approval of the Sages.'⁷  R. Johanan said: It was in the days of Rabbi that this teaching was enunciated, as taught: 'It once happened with a certain man who was desirous of making restitution that his wife said to him, Raca, if you are going to make restitution, even the girdle [you are wearing] would not remain yours, and he thus refrained altogether from making repentance. It was at that time that it was declared that if robbers or usurers are prepared to make restitution it is not right to accept [the misappropriated articles] from them, and he who accepts from them does not obtain the approval of the Sages.'

An objection was raised [from the following:] 'If a father left [to his children] money accumulated by usury, even if the heirs know that the money was [paid as] interest, they are not liable to restore the money [to the respective borrowers].⁸  Now, does this not imply that it is only the children who have not to restore, whereas the father would be liable to restore?⁹  The law might be that even the father himself would not have had to restore, and the reason why the ruling was stated with reference to the children¹⁰  was that since it was necessary to state in the following clause 'Where the father left them a cow or a garment or anything which could [easily] be identified, they are liable to restore [it], in order to uphold the honour of the father,' the earlier clause similarly spoke of them. But why should they be liable to restore¹¹  in order to uphold the honour of the father? Why not apply to them [the verse] 'nor curse the rule of thy people',¹²  [which is explained to mean.] 'so long as he is acting in the spirit of 'thy people'?¹³  — As however, R. Phinehas [elsewhere]¹⁴  stated, that the thief might have made repentance, so also here we suppose that the father had made repentance. But if the father made repentance, why was the misappropriated article still left with him? Should he not have restored it?¹⁵  — But it might be that he had no time to restore it before he [suddenly] died.

Come and hear: Robbers and usurers even after they have collected the money must return it.¹⁶  But what collection could there have been in the case of robbers. for surely if they misappropriated anything they committed robbery, and if they had not misappropriated anything they were not robbers at all? It must therefore read as follows: 'Robbers, that is to say usurers, even after they have already collected the money, must return it.'¹⁷  — It may, however, be said that though they have to make restitution of the money it would not be accepted from them. If so why have they to make restitution? — [To make it quite evident that out of their own free will] they are prepared to fulfil their duty before Heaven.¹⁸

Come and hear: 'For shepherds, tax collectors and revenue farmers it is difficult to make repentance, yet they must make restitution [of the articles in question] to all those whom they know [they have robbed].¹⁹  — It may, however, [also here] be said that though they have to make restitution, it would not be accepted from them. If so why have they to make restitution? — [To make it quite evident that out of their free will] they are prepared to fulfil their duty before Heaven. But if so why should it be difficult for them to make repentance?²⁰  Again, why was it said in the concluding clause that out of articles of which they do not know the owners they should make public utilities,²¹  and R. Hisda said that these should be wells, ditches and caves?²²  — There is, however, no difficulty, as this teaching²³  was enunciated before the days of the enactment,²⁴  whereas the other statements were made after the enactment. Moreover, as R. Nahman has now stated that the enactment referred only to a case where the misappropriated article was no more intact, it may even be said that both teachings were enunciated after the days of the enactment, and yet there is no difficulty,

1. Lev. V. 23.
2. That payment is made in accordance with the value at the time of robbery.
3. v. p. 545. n. 6.
4. Shab. 46a and supra p. 158.
5. For notes v. supra p. 382. [This shows that change transfers ownership even where the consideration of penitents does not apply.]
6. [In which case but for the consideration of penitent robbers, change transfers no ownership. Where the change. however, cannot be reverted, it confers unqualified ownership.]
7. Rashi renders 'no spirit of wisdom and piety resides in him', but see also Tosaf. Yom Tob. Aboth III, 10.
8. Tosef. B.M. V, 8.
9. [Whereas above it is stated that the monies thus returned are not accepted.]
10. And not to the father himself
11. In the case dealt with in the concluding clause.
12. Ex. XXII, 27.
13. Excluding him who wilfully violates the laws of Israel.
14. Hag. 26a.
15. [I.e. not to retain it with him, despite the refusal of the owners to accept it (v. Tosaf.).]
16. B.M. 62a.
17. Does this not prove that the misappropriated money if restored would be accepted from them?
18. As it is only in such a case that the restored money will not be accepted.
19. Tosef B.M. VIII. Does this not prove that misappropriated articles if restored would be accepted?
20. Since no actual restitution will have to be made.
21. Cf. Az. 29a.
22. And thus provide water to the general public among whom the aggrieved persons are to be found.
23. Where actual restitution is implied.
24. Which was ordained in the days of Rabbi.