Babylonian Talmud: Tractate Baba Kamma

Folio 115a

it would not be necessary to be so particular.¹  But he might perhaps have been in need of money and thus compelled to sell [some of his articles]? — Said R. Ashi: There is the fact that a rumour of burglary in his place had been current in town.²

It was stated: Where articles were stolen and sold by the thief who was subsequently identified, Rab in the name of R. Hiyya said that the owner would have to sue the first,³  whereas R. Johanan in the name of R. Jannai said that he would have to sue the second.⁴  R. Joseph thereupon said: There is no conflict of opinion:⁵  in the one case where the purchase took place before Renunciation⁶  he could sue the second,⁷  whereas in the other, where it took place after Renunciation⁸  he would have to sue the first;³  and both of them⁹  adopt the view expressed by R. Hisda.¹⁰  Abaye said to him: Do they⁹  indeed not differ? Is the case of endowments to priests¹¹  not on a par with [a purchase taking place] before Renunciation¹²  and there is nevertheless here a difference of opinion? For we learnt: If one asked another to sell him the inside of a cow in which there were included priestly portions he would have to give it to the priest without deducting anything from the [purchase] money; but if he bought it from him by weight he would have to give the portions to the priests and deduct their value from the [purchase] money.¹³  And Rab thereupon said that the [last] ruling could not be explained except where it was the purchaser who weighed it for himself, for if the butcher¹⁴  weighed it for him, the priest would have to sue the butcher!¹⁵  — Read: 'He can sue also the butcher,'¹⁶  for you might have thought that priestly portions are not subject to the law of robbery;¹⁷  we are therefore told [here that this is not so]. But according to Abaye who stated that there was a difference of opinion between them,¹⁸  what is that difference? — Whether or not to accept the statement of R. Hisda.¹⁹  R. Zebid said: [They differed in regard to a case] where, e.g., the proprietor abandoned hope of recovering the articles when they were in the hands of the purchaser, but did not give up hope so long as they were in the hands of the thief, and the point at issue between them was that while one master²⁰  maintained that it was only Renunciation followed by a change of possession that transfers ownership,²¹  whereas if the change of ownership has preceded Renunciation²²  no ownership is thereby transferred,²³  the other master²⁴  maintained that there is no distinction.²⁵  R. Papa said: Regarding the garment itself²⁶  there could be no difference of opinion at all, as all agree that it will have to be restored to the proprietor.²⁷  Where they²⁸  differ here is as to whether the benefit of market overt²⁹  is to be applied to him. Rab in the name of R. Hiyya said that he³⁰  has to sue the first; i.e., the claim of the purchaser for recovery of his money is against the thief, as the benefit of market overt does not apply here,³¹  whereas R. Johanan stated in the name of R. Jannai that he³⁰  may sue the second, i.e., the claim of the purchaser for repayment should be against the proprietors since the benefit of market overt does apply also here.³¹  But does Rab really maintain that the benefit of market overt should not apply here?³¹  Was R. Huna not a disciple of Rab³²  and yet when Hanan the Wicked³³  misappropriated a garment and sold it and was brought before R. Huna, he said to the plaintiff, 'Go forth and redeem your pledge [in the purchaser's hand]'?³⁴  — The case of Hanan the Wicked was different, for since it was impossible to get any payment from him, it was the same as where the thief was not identified at all. Raba said: 'Where the thief is notorious, the benefit of [a purchase in] market overt would not apply.³⁵  But was Hanan the Wicked not notorious, and yet the benefit of [a purchase in] market overt still applied? — He was only notorious for wickedness, but for theft he was not notorious at all.

It was stated: If a man misappropriated [articles] and paid a debt [with them], or if he misappropriated [them] and paid for goods he received on credit, the benefit of [a purchase in] market overt will not apply, for we are entitled to say,³⁶  'Whatever credit you gave him was not in return for these stolen articles.' If he pledged them for a hundred, their value being two hundred, the benefit of [a purchase in] market overt would apply. But if their value equalled the amount of money lent on them, Amemar said that the benefit of market overt would not apply³⁷  whereas Mar Zutra said that the benefit of [a purchase in] market overt should apply. (The established law is that the benefit of a purchase in market overt should apply.)³⁸  In the case of a sale, where the money paid was the exact amount of the value of the goods, the benefit of [a purchase in] market overt would certainly apply. But where goods of the value of a hundred were bought for two hundred R. Shesheth said that the benefit of [a purchase in] market overt should not apply,³⁹  whereas Raba said that the benefit of [a purchase in] market overt should apply. The established law in all these cases, however, is that the benefit of [a purchase in] market overt should apply, with the exception of the cases where one misappropriated [articles] and paid a debt with them, and where one misappropriated them and paid for goods received on credit.⁴⁰

Abimi⁴¹  b. Nazi, the father-in-law of Rabina had owing to him four zuz⁴²  from a certain person. The latter stole a garment and brought it to him [as a pledge] and borrowed on it four further zuz. As the thief was subsequently identified, the case came before Rabina⁴³  who said: Regarding the former [four zuz] it is a case of a thief misappropriating articles and paying a debt [with them] in which case the plaintiff has to pay nothing whatsoever,⁴⁴  whereas regarding the latter four zuz you can demand your money and [then] return the garment. R. Cohen demurred: Why not say that the garment was delivered in consideration of the first four zuz [exclusively], so that it would thus be a case of misappropriating articles and paying [with them] a debt, or misappropriating articles and paying [with them] for goods [received] on credit, whereas the further advance of the last four zuz was a matter of mere trust,⁴⁵  just as he trusted him at the very outset? After being referred from one authority to another, the matter reached the notice of R. Abbahu who said that the law was in accordance with R. Cohen.

A Narashean⁴⁶  misappropriated a book and sold it to a Papunian⁴⁷  for eighty zuz, and this papunian went and sold it to a Mahozean⁴⁸  for a hundred and twenty zuz. As the thief was subsequently identified Abaye said that the proprietor of the book could come and pay the Mahozean eighty zuz⁴⁹  and get his book back, and the Mahozean would be entitled to go and recover the other forty zuz⁵⁰  from the papunian.⁵¹  Raba demurred saying: If in the case of a purchase from the thief himself the benefit of market overt applies should this not be the more so in the case of a purchase from a purchaser?⁵²  — Raba therefore said: The proprietor of the book can go and pay the Mahozean a hundred and twenty zuz⁵³  and get back his book, and the proprietor of the book is [then] entitled to go and recover forty zuz from the papunian⁵¹  and eighty zuz from the Narashean.⁵⁴

MISHNAH. IF ONE MAN WAS COMING ALONG WITH A BARREL OF WINE AND ANOTHER WITH A JUG OF HONEY, AND THE BARREL⁵⁵  OF HONEY HAPPENED TO CRACK, AND THE OTHER ONE POURED OUT HIS WINE AND RESCUED THE HONEY INTO HIS [EMPTY] BARREL,

1. According to Rashi, as to require evidence regarding the identity of the books; but according to Maim. all the other circumscriptions are similarly dispensed with (Wilna Gaon).
2. So that there is some circumstantial evidence to corroborate the plaintiff's allegations.
3. I.e., the thief.
4. I.e., the purchaser.
5. I.e., between Rab and R. Johanan.
6. In which case the sale is of no validity at all.
7. I.e., the purchaser who would have to restore the articles without any payment at all.
8. Where the purchase is valid since Renunciation was followed by change of possession.
9. I.e., Rab and R. Johanan.
10. Supra p. 652, that where a robber misappropriated an article and before Renunciation on the part of the owner it was consumed by another one, the plaintiff has the option of making either of them responsible.
11. Dealt with in Deut. XVIII, 3.
12. For the priests have surely never abandoned their right.
13. Hul. X, 3.
14. I.e., the vendor.
15. Now, we are dealing here with a case where there was no Renunciation (v. p. 681, n. 12); why then does Rab maintain that the priest would have to sue the butcher and not the Purchaser?
16. Having the option to sue either the butcher (who is the vendor) or the purchaser, for the reason stated supra p. 681, n. 10.
17. For since they are endowments by Divine Law they always remain priestly property wherever they are, so that even where the vendor has personally delivered them to the purchaser it should be the latter alone who would be responsible to the priest.
18. Rab and R. Johanan.
19. V. supra p. 681, n. 10.
20. I.e., R. Johanan.
21. To the last possessor, I.e. the purchaser.
22. As was the case here where the Renunciation took place when the articles were already in the hands of the purchaser.
23. To the purchaser who would thus have to restore the articles without any payment at all.
24. I.e., Rab.
25. As in both these cases the ownership is transferred to the purchaser who may thus retain the articles, while the original owner could have a claim only against the thief.
26. Which has been misappropriated.
27. As the purchaser acquired no title to it if he bought it before Renunciation.
28. I.e., Rab and R. Johanan.
29. [H], Lit., 'the ordinance of the market' which provides, in the case of sales made bona fide in open market, for the return of the purchased article to the owner who would have to pay the purchaser the price he had paid as stated in our Mishnah. The ordinance was enacted in the interest of trade, for unless so protected people would be afraid to buy goods for fear lest they are stolen. V. Jung, M. The Jewish Law of Theft, pp. 91 ff. Cf. also pp. 15ff.]
30. The purchaser.
31. Where the theft has definitely been established.
32. Cf. Sanh. 6b.
33. Also mentioned supra p. 205.
34. Proving thus that the plaintiff would have to pay the purchase money even where the theft was definitely established.
35. For the purchaser should not have bought the articles from him.
36. To the purchaser.
37. For as it is unusual that the value of the pledge should not exceed the amount of the loan, it is probable that the loan was not based on the security of the pledge.
38. [The bracketed passage is deleted by Rashal and rightly so, since the very contrary fixed ruling is given infra.]
39. For since he paid twice the value the transaction resembles rather a gift than a purchase.
40. Cf. n. 2.
41. According to Alfasi 'Abaye'.
42. V. Glos.
43. 'Rabbanai' according to Hyman, Toledoth, 88; for similar deviations, cf. supra 113b with B.M. 2a.
44. As decided supra, this page.
45. And if so, the plaintiff should be entitled to recover the garment without any payment whatsoever.
46. I.e., a person of Naresh near Sura in Babylonia.
47. I.e., a person of Papunia, [between Bagdad and Pumbeditha, Obermeyer, op. cit., p 242].
48. I.e., a person of Mahoza, a trading town on the Tigris.
49. I.e., the original sum for which the thief sold it.
50. He paid to the first purchaser who was his vendor.
51. I.e., the first purchaser who sold it to the second and made a profit of forty zuz.
52. Who bought it from a thief as was the case here.
53. I.e., the purchase money he paid.
54. I.e., the thief who sold the book for this amount.
55. As to the substitution of 'barrel' for 'jug' v. supra p. 142.

HE WOULD BE ABLE TO CLAIM NO MORE THAN THE VALUE OF HIS SERVICES;¹  BUT IF HE SAID [AT THE OUTSET], 'I AM GOING TO RESCUE YOUR HONEY AND I EXPECT TO BE PAID THE VALUE OF MY WINE,' THE OTHER HAS TO PAY HIM [ACCORDINGLY]. SO ALSO IF A RIVER SWEPT AWAY HIS ASS AND ANOTHER MAN'S ASS, HIS ASS BEING ONLY WORTH A MANEH²  AND HIS FELLOW'S ASS TWO HUNDRED ZUZ,²  AND HE LEFT HIS OWN ASS [TO ITS FATE], AND RESCUED THE OTHER MAN'S ASS, HE WOULD BE ABLE TO CLAIM NO MORE THAN THE VALUE OF HIS SERVICES; BUT IF HE SAID TO HIM [AT THE OUTSET], 'I AM GOING TO RESCUE YOUR ASS AND I EXPECT TO BE PAID AT LEAST THE VALUE OF MY ASS,' THE OTHER WOULD HAVE TO PAY HIM [ACCORDINGLY].

GEMARA. But why [should the rescuer] not be entitled to say, 'I have acquired title to the rescued object³  as it became ownerless'?⁴  Was it not taught [in a Baraitha]: 'If a man carrying pitchers of wine and pitchers of oil noticed that they were about to be broken, he may not say, "I declare this terumah⁵  or tithe with respect to other produce which I have at home," and if he says so, his statement is of no legal validity'?⁶  — As R. Jeremiah said in another connection, 'Where the bale⁷  of the press-house was twined around it [it would not become ownerless]';⁸  so also here in the case of the barrel [we suppose] the bale of the press-house was twined around it.⁹  [Still, how does the Baraitha state:]¹⁰  'And if he says so, his statement is of no legal validity'? Surely it was taught: If a man was walking on the road with money in his possession, and a robber confronted him, he may not say, 'The produce which I have in my house¹¹  shall become redeemed¹²  by virtue of these coins,'¹³  yet if he says so, his statement has legal validity?¹⁴  — Here [in the latter case] we suppose that he was still able to rescue the money.¹⁵  But if he was still able to rescue the money why then should he not be allowed to say so¹⁶  even directly? — We suppose he would be able to rescue it with [some] exertion. But still even where there is likely to be a loss,¹⁷  why should he not be allowed to say so¹⁶  even directly?¹⁸  Surely it was taught: If a man has ten barrels¹⁹  of unclean tebel²⁰  and notices one of them on the point of becoming broken or uncovered,²¹  he may say, 'Let this be the terumah [portion] of the tithe²²  with respect to the other nine barrels,' though in the case of oil he should not do so as he would thereby cause a great loss to the priest?²³  — Said R. Jeremiah: [In this case we suppose that] the bale of the presshouse was still twined around it.²⁴  This is a sufficient reason in the case where the barrel broke, as [the wine remaining] is still fit to be used, but in the case where the barrel became uncovered, for what use is the wine fit any more? For should you argue that²⁵  it is still fit for sprinkling purposes, was it not taught: Water which became uncovered should not even be poured out on public ground, and should neither be used for stamping clay, nor for sprinkling the house,²⁶  nor for feeding either one's own animal or the animal of a neighbour?²⁷  — He may make it good by using a strainer, in accordance with the view of R. Nehemiah as taught: A strainer²⁸  is subject to the law of uncovering;²⁹  R. Nehemiah, however, says that this is so only where the receptacle underneath was uncovered, but if the receptacle underneath was covered, though the strainer on top was uncovered the liquid [strained into the receptacle beneath] would not be subject to the law of uncovering as the venom of a serpent resembles a fungus and thus remains floating in its previous position.³⁰  But was it not taught³¹  in reference to this that R. Simeon said in the name of R. Joshua b. Levi that this ruling applies only if it has not been stirred, but if it had been stirred it would be forbidden?³²  — Even there it is possible [to rectify matters by] putting some [cloth] on the mouth of the barrel and straining the liquid gently through. But if we follow R. Nehemiah, is it permitted to make unclean produce terumah even with respect to other unclean produce? Surely it has been taught: It is permitted to make unclean produce terumah with respect to other unclean produce, or clean produce with respect to other clean produce, but not unclean produce with respect to clean produce,³³  whereas R. Nehemiah said that unclean produce is not allowed to be made terumah³⁴  even with respect to unclean produce except in the case of demai!³⁵  — Here also³⁶  we are dealing with a case of demai.

The Master stated: 'Though in the case of oil he should not do so as he would thereby cause a great loss to the priest'. But why is oil different? Surely because³⁷  it can be used for lighting; cannot wine³⁷  similarly be used for sprinkling purposes?³⁸  And should you argue that sprinkling is not a thing of any consequence, did Samuel not say³⁸  in the name of R. Hiyya that for drinking purposes one should pay a sela' per log [of wine], whereas, for sprinkling purposes, two sela's³⁹  per log? We are dealing here with fresh wine.⁴⁰  But could it not be kept until it becomes old? — He may happen to use it for a wrong purpose.⁴¹  But why not also in the case of oil apprehend that he may happen to use it⁴²  for a wrong purpose? — We suppose he keeps it in a filthy receptacle.⁴³  But why not keep the wine also in a filthy receptacle?⁴³  — Since it is needed for sprinkling purposes,⁴⁴  how could it be placed in a filthy receptacle?

The apprehension of illicit use⁴¹  is in itself a point at issue between Tannaim, as taught: If a barrel of terumah wine became unclean, Beth Shammai maintain

1. But not for the value of the wine. For a different view cf. supra p. 679 and Tosef, B.K. X, 13.
2. V. Glos.
3. I.e., the honey by receiving it in my receptacle.
4. For when the jug cracked and the loss of the honey became imminent there is implied Renunciation on the part of the owner; v. also supra p. 670 and B.M. 22a.
5. V. Glos.
6. For when the loss of the wine and oil becomes imminent the ownership comes to an end; Tosef. M.Sh. I, 6.
7. V. Sanh. (Sonc. ed.) p. 151, n. 6.
8. For the liquid would then merely leak out drop by drop, but not be lost instantly.
9. And since the honey would not flow out straight away there is no immediate lapse of ownership.
10. Where the bale of the press-house was not twined around it.
11. And which was set aside as a second tithe, cf. Lev. XXVII, 30.
12. In accordance with ibid. 31 and Deut. XIV, 25.
13. Which were about to be misappropriated by the robber.
14. And the produce in his house would become redeemed. This contradicts the former Braitha.
15. From being taken away by the robber.
16. That the produce should be redeemed by the coins.
17. [I.e., where he is able to rescue with some exertion.]
18. Some authorities, however, read thus: 'But still even where there is a definite loss why should his statement be of no legal validity?' V. Tosaf. a.l. but also Rashi and BaH.
19. Of wine.
20. I.e., produce prior to the separation of the priestly and levitical portions as required by law.
21. And will thus become forbidden for use, for fear that a venomous snake partook of the liquid and injected there poison, v. Ter. VIII, 4-7.
22. I.e., the tithe of the tithe mentioned in Num. XVIII, 26.
23. The difference between oil and wine is that, since the produce was already defiled, in the case of wine the priest would in any case be unable to make any use of it, whereas in the case of oil he can use it for the purposes of heating and lighting; v. Ter. XI, 10. [Now assuming that the loss involved in the case of the wine, being small (v. infra), is to be compared with a loss that is not definite, does this not prove that where there is only likely to be a loss, the relevant declaration may be made directly?]
24. In which case the loss is insignificant.
25. Though it is no more good as a drink.
26. For the venom which it might contain might injure persons walking there barefooted.
27. Tosef Ter. XVII, and A.Z. 30b.
28. I.e., liquid poured therein to be strained.
29. For the venom, if any, will pass through the strainer.
30. In the strainer without passing on to the receptacle underneath (Tosef. Ter. ibid. 14.)
31. Cf. J. Ter. VIII, 5.
32. [Here likewise, since he cannot avoid stirring the wine while pouring it from the barrel into the strainer, the venom will pass into the receptacle.]
33. Cf. Ter. II, 2, and Yeb. 89a.
34. For the setting aside of terumah must be in such a way as to enable it to be given to a priest whilst clean.
35. I.e., produce bought from a person who could not be trusted to have set aside the necessary tithes. V. Glos. (cf. Ter. II, 2, and Yeb. 89a).
36. Regarding the ten barrels of unclean tebel.
37. When unclean and thus unfit for consumption by the priest.
38. Cf. Pes. 20b.
39. As wine for sprinkling is more useful than for drinking.
40. Which is not fit for sprinkling.
41. For through keeping it for some time he might inadvertently partake of it; it should therefore be forbidden to keep it at all.
42. As he keeps it for heating and lighting.
43. As a safeguard against partaking of it.
44. And thus dependent upon its odour.