Talmud - Bava Kamma 114a בבא קמא קי״ד א׳

based on the word of one witness, which is insufficient evidence according to Jewish law. And we said that this is so only when one individual testifies alone against his fellow Jew, but when two witnesses testify against a Jew, we do not excommunicate them, as their testimony is sufficient evidence according to Jewish law as well, and they have not caused the defendant any unjustified financial loss even according to halakha. And in a case of a single witness also, we said that we excommunicate him only if he testified in a court of villagers [demagista], but if he testified in the official government courthouse [bei davar], he is not excommunicated. This is because they also prescribe an oath to the defendant based on the testimony of a single witness, but they do not expropriate money, in accordance with Jewish law.

The Gemara relates that Rav Ashi said: When I was in the academy of Rav Huna, the following dilemma was raised before us: What is the halakha with regard to an important person, whose testimony is relied upon by the gentile courts as if it were the testimony of two witnesses? Since the gentile court will expropriate money based on his word, should the halakha be that he should not testify? Or perhaps, since he is an important person, he cannot escape the authorities who demand his testimony, and he may therefore testify. The Gemara concludes: The dilemma shall stand unresolved.

§ The Gemara cites another situation where a Jew is excommunicated for causing harm to another Jew. Rav Ashi said: In the case of a Jewish man who sells a gentile a plot of land that is on the border of the property of his fellow Jew, we excommunicate him. What is the reason? If we say it is because he has ignored the right of one whose field borders the field of his neighbor to be the first one offered the purchase of the field, but doesn’t the Master say: With regard to one who purchases land from a gentile, and one who sells land to a gentile, there is no right of one whose field borders the field of his neighbor to be the first one offered the purchase of the field?

Rather, it is because we say to him on behalf of the owner of the adjacent field: You have placed a lion, i.e., a dangerous individual, on my border, as the gentile might now cause me harm. Consequently, we excommunicate him until he accepts upon himself responsibility for all harm that comes upon the neighbor due to the gentile’s activities.

MISHNA: If customs collectors took one’s donkey and gave him a different donkey that was taken from another Jew in its stead, or if bandits took his garment and gave him a different garment that was taken from a Jew in its stead, these items are now his because the owners despaired of retrieving them when they were stolen, and they may therefore be acquired by another. In a case of one who salvages items from a river, or from a troop [hagayis] of soldiers, or from bandits, if the owners of the items despaired of retrieving them, they are his, i.e., they belong to the one who salvaged them. And so too, with regard to a swarm of bees, if the owners despaired of retrieving the bees, they are his, i.e., they belong to the one who found them.

Rabbi Yoḥanan ben Beroka said: A woman or a minor, whose testimony is not generally accepted by the court, is deemed credible to say: It was from here that this swarm emerged, and it therefore belongs to a certain individual. And one may walk into another’s field in order to salvage his own swarm of bees that has relocated there, and if he damaged some property in the process, he must pay for what he has damaged. But if the bees settled on a branch of a tree, he may not cut off the other’s branch in order to take the bees, even on the condition that he will later give him the money for it. Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, says: He may even cut off the branch and later give him the money for it as compensation.

GEMARA: The mishna teaches that one who is given an item by a customs collector or a bandit may keep the item. It was taught in a baraita: If he took a donkey from the customs collector, he must return it to the original owners. The Gemara explains: The tanna of this baraita holds that despair alone does not effect legal acquisition. Consequently, the customs collector did not acquire the donkey, and it initially came into the possession of the individual to whom the customs collector gave it illegally, and he is therefore required to return it to the original owner.

And there are those who say that the baraita means that if he wants to act beyond the letter of the law and comes to return it voluntarily, he should return it to the original owners, but he is not required to return it. What is the reason that he is not required to return it? It is because despair alone effects legal acquisition and the donkey was, therefore, acquired by the Jew when the customs collector gave it to him. Nevertheless, if he said: I do not want to accept money that is not mine, he returns it to the original owners.

§ The mishna teaches that if customs collectors or bandits replaced one’s item with one taken from another Jew, these items are now his because the owners despaired of retrieving them when they were stolen. In this regard, Rav Ashi says: They taught that the owners certainly despaired of recovering their property only when it was stolen by a gentile bandit, but if it was taken by a Jewish bandit, no, the owner did not necessarily despair of recovering it. This is because the victim of the theft might reason: Tomorrow, I will take him to court and force him to return what he stole.

Rav Yosef objects to this: On the contrary, the opposite is more reasonable: When dealing with gentiles, who judge a case and impose their verdicts with force, he does not despair because he realizes that the gentile court will enforce the law. By contrast, when dealing with a Jew, since Jewish courts merely pronounce a verbal decision but do not have the authority to enforce it, the victim despairs of recovering his property.

Rather, if Rav Ashi’s distinction was stated, it was stated with regard to the latter clause of the mishna, which states: In the case of one who salvages an item from gentiles or from bandits, if the owners despaired of retrieving it, the one who finds it may keep it. The Gemara infers: If it is known that the owners despaired of retrieving it, yes, the finder may keep the item; but in an unspecified situation, where it is not known whether the owners despaired, the finder may not keep the item.

Concerning this, Rav Ashi said: They taught this only when the item was stolen by a gentile bandit, because the gentile court judges a case and imposes its verdict with force, and therefore it cannot be assumed that the owners despair. But if the robbery was committed by a Jewish bandit, since Jewish courts merely pronounce a verbal decision but do not have the authority to enforce it, the victim despairs of recovering his property.

§ Apropos the discussion with regard to an owner’s despair of retrieving a lost or stolen item, the Gemara notes that we learned in a mishna there (Kelim 26:8): With regard to hides that are tanned by the owner himself, thought renders them susceptible to ritual impurity. Hides and leather are susceptible to contracting impurity only if they are in a finished state. If a private individual uses a piece of hide or leather for a certain purpose, e.g., as a cot or a table top, and decides that this will be its fixed purpose, it is considered a finished product and is susceptible to contracting impurity.

But with regard to hides belonging to a leatherworker, thought does not render them susceptible to ritual impurity. Since this individual sells leather to others, when he uses a piece of leather for a household purpose and decides that this will be its fixed purpose, it is not considered a finished state, as he is likely to change his mind and sell the leather to one who will process it further and put it to a different use.

The mishna continues: If they are those of a robber, his thought does not render them susceptible to ritual impurity, because he is not considered the owner of the hide. If the hides are those of a thief, who has stolen them from another, the thief’s thought renders them susceptible to ritual impurity. The difference is that unlike the case of a thief, who steals items stealthily, the identity of a robber, who takes the item openly, is known to the owner, and he harbors hope of finding him and getting the item back. Consequently, he does not despair of recovering his property.

Rabbi Shimon says that the matters are reversed: In the case of a robber, the robber’s thought renders them susceptible to ritual impurity. If the hides are those of a thief, thought does not render them susceptible to ritual impurity, because the owners have not despaired of recovering them and the thief has not acquired the hide. Rabbi Shimon’s reasoning is that a robber, who seizes items brazenly, is a more difficult criminal to apprehend and bring to justice than a thief.

The Gemara analyzes the scope of the dispute between Rabbi Shimon and the first tanna. Ulla says: The dispute is only with regard to an unspecified case, where it is unknown whether or not the owners despaired, but where it is known that the owners despaired, all agree that their despair effects legal acquisition. By contrast, Rabba says: Even in cases where it is known that the owners despaired, there is also a dispute, because although the owner may have expressed despair verbally, he may still hope to retrieve the item.

Abaye said to Rabba: Do not disagree with Ulla, as the formulation of the halakha that we learned in the mishna is in accordance with his opinion. The mishna states that according to Rabbi Shimon, thought does not render the hides of a thief susceptible to ritual impurity because the owners did not despair of retrieving them, and therefore the hides do not belong to the thief. This indicates that the reason the thought of the thief does not render the hides susceptible to ritual impurity is that the owners did not despair of retrieving them. But if the owners had despaired of retrieving them, then these items would be his, and his thoughts would render the hides susceptible to ritual impurity.

Rabba said to him: We learned the mishna as saying: A thief cannot render the hides susceptible to ritual impurity because there is no true despair for owners of stolen goods, even if they state they have despaired.

We learned in the mishna here that if customs collectors took one’s donkey and replaced it with a donkey taken from another Jew, or if bandits took his garment and replaced it with a garment taken from another Jew, he may keep these items because the owners despaired of retrieving them when they were stolen. The Gemara asks: Whose opinion is expressed in this mishna?

If it is in accordance with the Rabbis, who hold that the owner despairs only in the case of a thief who steals secretly, it is difficult, because the mishna indicates that the victim of a robber also despairs of retrieving his property, as in the case of a customs collector. And if it is in accordance with Rabbi Shimon, who holds that the owner despairs only in the case of a robber, it is difficult, because the mishna indicates that the victim of a thief also despairs of retrieving his property, as in the case of bandits.

Granted, according to Ulla, who says that all agree that if it is known that the owners despaired, the individual in possession of the items acquires them, here too it is possible to explain that the mishna is discussing a case where it is known that the owners despaired, and all agree that the recipient of the stolen property may keep it.

But according to Rabba, who says that even in cases where it is known that the owners despaired, there is also a dispute, in accordance with whose opinion is this mishna written? It is not in accordance with the opinion of the Rabbis, and it is not in accordance with the opinion of Rabbi Shimon. The Gemara answers that the mishna is discussing a case of an armed bandit, who is similar to a robber in that he steals using force and aggression. And it is in accordance with the opinion of Rabbi Shimon, who holds that the victim of a robber despairs of recovering his property.

The Gemara asks: If so, this is identical to the case of a robber, i.e., the customs collector, and there is no reason for the mishna to teach the same halakha twice. The Gemara answers that the mishna in fact teaches the halakha with regard to two different types of robbers, the customs collector and the armed bandit.

The Gemara suggests another proof with regard to the dispute between Ulla and Rabba. Come and hear the following baraita: With regard to a thief, a robber, and one who forces another to sell him something, their consecrated items are considered consecrated, and their teruma, the portion of the produce designated for the priest, is considered teruma, and their tithes are considered tithes.

The Gemara asks: Whose opinion is expressed in this baraita? If it is in accordance with the Rabbis, it is difficult because the baraita assumes that even the victim of a robber despairs of retrieving his property, as seen from the halakha that the robber’s act of consecration or separation of teruma or tithes is valid. This contradicts the opinion of the Rabbis, who hold that the thoughts of a robber do not render the hides susceptible to ritual impurity, because he is not considered the owner of the hides. Conversely, if it is in accordance with Rabbi Shimon, it is difficult because the baraita assumes that the victim of a thief despairs of retrieving his property, as seen from the halakha that the thief's act of consecration or separation of teruma or tithes is valid. This contradicts the opinion of Rabbi Shimon, as he holds that the thoughts of a thief do not render the hides susceptible to ritual impurity, because he is not considered the owner of the hides.

Granted, according to Ulla, who says that all agree that if it is known that the owners despaired of recovering their property, the individual in possession of the items acquires them, here too, it is possible to explain that the mishna is discussing a case where it is known that the owners despaired. But according to Rabba, who says that even in cases where it is known that the owners despaired, there is also a dispute, in accordance with whose opinion is this baraita written? It is not written in accordance with the opinion of the Rabbis, and it is not in accordance with the opinion of Rabbi Shimon.

The Gemara answers: Here too, when the baraita mentions a thief it is actually referring to an armed bandit, who is considered a robber because he steals using force and aggression. And it is in accordance with the opinion of Rabbi Shimon, who holds that the victim of a robber despairs of recovering his property. The Gemara asks: If so, this case of a thief is identical to the case of a robber, and there is no reason for the baraita to teach the same halakha twice. The Gemara answers that the baraita wishes to teach the halakha with regard to two different types of robbers.

The Gemara offers an alternative explanation: And if you wish, say instead that this baraita is referring to an actual thief, and it is written in accordance the opinion of Rabbi Yehuda HaNasi. As it is taught in a baraita that Rabbi Yehuda HaNasi said: A thief is like a robber.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaKamma 114a examines excommunication for testifying against a fellow Jew in gentile courts and the ban on selling land to gentiles near a neighbor's field.