Thursday, 22 September 2016

Bava Kamma 114: Retrieving Bees and Other Stories About Stolen Items

After spending more attention on how Jews and Gentiles can sell property to each other, we are introduced to a new Mishna.  Of note is that Gentiles require only one witness while Jews require two.

Our new Mishna teaches that when a customs collector seizes a person's donkey and replaces it with one stolen from another Jew - or if a bandit does the same with a garment -  then the stolen item now belongs to that person.  The Rambam and the Rosh argue about whether or not such an item must be returned to its original owner or not.  Similarly, it is permitted to keep items salvaged from a river or a fire.  As long as the original owner considers the item to be lost to him/her, then the item need not be returned.

Further, Rabbi Yochanan ben Baroka taught that women and minors may act as witnesses in cases where swarms of bees leave one person's field and enter another's.  The bees' owners may enter that field and retrieve the bees.  Those owners are not permitted to remove entire branches, however, when they find their bees.  If anything is damaged in the rescue effort, the owner must pay for the damages.  Rabbi Yochanan ben Baroka's son, Rabbi Yishmael, taught that a branch may be cut off in this case and payment should be made after the fact.

Of course the Gemara must examine how it is possible that a donkey or garment would not be returned.  What if the owner did not despair the item because he believed that the Gentile courts would return it to him?  What if he believed that the Jewish court would seize it and return it to him?  And what if the item had become susceptible to ritual impurity?  The Gemara then focuses on which rabbi might have authored this Mishna.  Determining the author of the Mishna would be useful because the author's other rulings might help us understand his intention in writing this Mishna.  One of the most significant questions is whether/how a thief might be like a robber.

In discussing the swarm of bees and the validity of testimony of women and minors, the rabbi share a story where a person proves his membership in the priesthood through the memory of riding home from school on his father's shoulders and then having someone remove his tunic and ritually bathe him so that he could partake of teruma.   A slave who was able to partake of teruma would not have been at school, and so this memory was valid. 

Another new Mishna: If a person finds his stolen property (vessels, scrolls) in another person's possession - and there are rumours that that person has stolen his possessions - he is paid the amount that the robber swears he paid for the items.  Without the rumours, the victim is assumed to have sold his property to others who sold that property to the alleged robber.

The Gemara suggests a number of circumstances that describe the victim's possible motives to suggest such a thing.  They also consider the value of the items and the burglar's risk-taking - a homeowner is permitted to kill a burglar in his/her home.  This line of reasoning would require the victim to be a homeowner.

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