Talmud - Bava Kamma 68a בבא קמא ס״ח א׳

is it possible to say that there is any entrenchment in sin? The sale does not take effect, as it occurred before the owner despaired, which means that the thief did not in fact deepen his sin by selling the animal. Rather, it must be that the sale occurred after the owner’s despair. And if it enters your mind that the owner’s despair causes the thief to acquire the animal, why does he pay the fourfold or fivefold payment? Since the animal belongs to him after the owner’s despair, in effect he slaughters his own animal or sells his own animal.

The Sages say: It is possible to explain the term: Entrenched in sin, in accordance with what Rava said: The thief is liable because he repeated his sin, i.e., he sinned a second time by going through the motions of the sale, regardless of the fact the sale was not legally binding. Here too, one can say that the thief is liable because he repeated his sin.

The Gemara suggests: Come and hear a proof from a baraita: It is written: “If a man steal an ox or a sheep, and slaughter it or sell it” (Exodus 21:37). Just as slaughter is an act that cannot be undone, so too the selling referred to here is an act that cannot be undone.

The Gemara analyzes the baraita: Now, when is a sale irreversible? If we say this sale occurred before the owner’s despair of recovering his stolen animal, why can it not be undone? Since the thief’s sale of the animal before the owner’s despair is ineffective, the sale is easily undone. Rather, the baraita must be speaking about a case where the thief sold the animal after the owner’s despair. And if it enters your mind that a thief acquires a stolen item after the owner’s despair, why does he pay the fourfold or fivefold payment for slaughtering or selling the animal at this point? He slaughters his own animal or he sells his own animal. Apparently, a thief does not acquire the stolen item after the owner’s despair.

The Gemara rejects this proof: The explanation for this baraita is as Rav Naḥman said in reference to a different baraita. Rav Naḥman said that when that baraita speaks of a sale that cannot be undone, this excludes one who transferred ownership of the animal to another in a temporary manner, e.g., for thirty days. Here too, one can answer in the same way, that it excludes one who transferred ownership of the animal for thirty days. Accordingly, if one sold the animal permanently, even if the sale was performed before the owner despaired and is therefore not legally binding, he is nevertheless required to pay the fourfold or fivefold payment.

The Gemara raises an objection from another baraita: If one stole an animal, and another person subsequently came and stole it from him, the first thief pays double payment to the owner, and the second thief pays only the principal to the first thief. This is because one who steals from a thief does not pay the double payment, as the mishna teaches.

If one stole an animal and sold it, and another individual came and stole it from the purchaser, the first thief pays the fourfold or fivefold payment to the owner, and the second thief pays the double payment to the purchaser, who has become the new owner of the animal. If one stole an animal and slaughtered it, and another person came and stole the slaughtered animal, the first thief pays the fourfold or fivefold payment to the owner, and the second thief does not pay the double payment but only the principal, in accordance with the halakha that one who steals from a thief does not pay the double payment.

The Gemara analyzes this baraita: In any event, the baraita teaches in the middle clause: If one stole an animal and sold it, and another came and stole it from the purchaser, the first thief pays the fourfold or fivefold payment to the owner, and the second thief pays the double payment to the purchaser.

When did this sale occur? If we say it happened before the owner’s despair, why does the second thief pay the double payment to the purchaser? Is there anyone who says that a change in possession of a stolen item, i.e., when it leaves the possession of the thief and enters the possession of another, without the additional factor of the owner’s despair, causes the one who has it to acquire the item? There is no such opinion. Therefore, the so-called purchaser of the animal does not become its owner, as the sale is invalid. This should be considered as a case of one who steals from a thief, and consequently there should be no double payment.

Rather, it is obvious that the sale occurred after the owner’s despair. And if it enters your mind that a thief acquires a stolen item after the owner’s despair, why should the first thief pay the fourfold or fivefold payment? After all, it is his own animal that he sold, having acquired it immediately upon the owner’s despair.

And furthermore, consider that which the baraita teaches in the first clause: If one stole an animal, and another subsequently came and stole it from him, the first thief pays the double payment to the owner, and the second thief pays only the principal to the first thief.

Now, in this baraita we are dealing with a situation after the owner’s despair, as the Gemara just established. And if it enters your mind that the owner’s despair causes the thief to acquire the item, why does the second thief pay only the principal? After the owner has despaired of recovering his item, the thief becomes the owner of the item, and the second thief should have to pay him double payment for stealing his property. Rather, must one not conclude from the baraita that the owner’s despair does not cause the thief to acquire the item? And this presents a difficulty to the opinion of Rav.

Rava said: And can you understand that the text of this baraita is accurate? But consider that which it teaches in the last clause: If one stole an animal and slaughtered it, and another came and stole the slaughtered animal, the first thief pays the fourfold or fivefold payment to the owner, and the second thief pays only the principal to the first thief. And is there anyone who says that a physical change brought about by an action does not cause the thief to acquire the item? There is no such opinion; the thief certainly becomes the owner of the animal after slaughtering it. Consequently, the second thief should have to pay the double payment to the thief for stealing his slaughtered animal. It must therefore be concluded that the text of the baraita has been corrupted and must be reformulated.

Rather, actually the entire baraita is referring to the stage before the owner’s despair. And you must reverse the halakha stated in the last clause with that stated in the middle clause, and reverse the halakha stated in the middle clause with that stated in the last clause, and say like this: If one stole an animal and sold it, and another came and stole it from the purchaser, the first thief pays the fourfold or fivefold payment to the owner, and the second thief pays only the principal to the purchaser, as a change in possession without the additional factor of owner’s despair does not cause one to acquire the item.

If one stole an animal and slaughtered it, and another came and stole the slaughtered animal, the first thief pays the fourfold or fivefold payment to the owner, and the second thief pays the double payment to the first thief, as the first thief acquired it through the physical change brought about by an action, i.e., slaughter.

Rav Pappa said: Actually, do not reverse the middle and last clauses of the baraita. With regard to the difficult last clause, it is in accordance with the opinion of Beit Shammai, who say: Even if an item has undergone a physical change, it remains in its place, i.e., a stolen item remains the property of the owner. A thief never attains ownership of it, even if it undergoes a physical change.

The Gemara asks: If so, if the baraita is not reversed, and if it is referring to the stage after the owner’s despair, then the first clause and the middle clause of the baraita present a difficulty to the opinion of Rav, who maintains that after the owner’s despair the item belongs entirely to the thief.

Rav Zevid said: Actually, the entire baraita is dealing with the stage before the owner’s despair. And with what are we dealing here, in the middle clause of the baraita? We are dealing with a case where the owners despaired of recovering the item when it was already in the possession of the purchaser, but they had not yet despaired when the item was in the possession of the thief. The purchaser is considered the owner because after the despair occurred, there were two factors in play, both the owner’s despair and a change in possession. The combination of these two factors effects acquisition of the item on behalf of the purchaser.

Rav Zevid continues: And do not say that in the middle clause the reason the owner’s item is acquired by another is only because we require two factors, i.e., the owner’s despair and change of possession. Rather, even in a case of the owner’s despair by itself, the item is acquired by the thief, in accordance with Rav’s opinion that despair alone effects acquisition on behalf of the thief.

Nevertheless, the baraita chose a case in which both of these factors are present because you will not find a case in which both of them, the first thief and the second thief, pay a penalty except in such a case. The first thief pays the fourfold or fivefold payment, and the second thief pays the double payment. Had the owner despaired before the sale, the first thief would have been considered the owner and would therefore be exempt from the additional payment.

§ It was stated: With regard to a thief who sells a stolen animal before the owner’s despair, Rav Naḥman says: He is liable to pay the fourfold or fivefold payment, despite the fact that the sale is invalid. Rav Sheshet says: He is exempt from this payment.

The two amora’im explain the reasons for their respective rulings. Rav Naḥman says: He is liable, because the Merciful One states with regard to the fourfold or fivefold payment: “And slaughter it or sell it” (Exodus 21:37), and he has sold it. There is no difference if the sale occurs before despair, and there is no difference if it takes place after despair. Rav Sheshet says: He is exempt, as his liability is in effect only if he sells the animal after the owner’s despair, when his action, i.e., the sale, is effective. But if he sells it before the owner’s despair, when his action is not effective, he is not liable, as we require that the sale be similar to the slaughter, as they are mentioned together, and when he slaughters the animal his action is effective.

Rav Sheshet said: From where do I say he is exempt? As it is taught in a baraita that Rabbi Akiva said: For what reason did the Torah say that a thief who slaughtered or sold a stolen animal pays the fourfold or fivefold payment? It is because he has become entrenched in sin by slaughtering or selling the animal he stole.

Rav Sheshet analyzes the baraita: When did this sale, referred to by Rabbi Akiva, occur? If we say that it happened before the owner’s despair, is it possible that there is any entrenchment in sin here? A sale before the owner’s despair is invalid, which means there is no deepening of his earlier sin. Rather, is it not the case that this is referring to a sale after the owner’s despair? Rava said: This is not a proof, as one can explain that the thief is entrenched in sin because he repeated his sin, i.e. sinned a second time, by his act of sale, regardless of the fact that the sale is invalid.

The Gemara suggests: Come and hear a proof for the opinion of Rav Sheshet from a different baraita: It is written: “And slaughter it or sell it” (Exodus 21:37). Just as slaughter is an act that cannot be undone, so too the selling referred to here is an act that cannot be undone. The Gemara analyzes this baraita: When did this sale take place? If we say that it happened before the owner’s despair of recovering his stolen item, why can it not be undone? The thief’s sale of the animal is invalid before the owner’s despair, and therefore the sale is easily undone. Rather, it must be referring to a sale that took place after the owner’s despair. And one can conclude from the baraita that there is liability to pay the fourfold or fivefold payment only if the animal is sold after the owner’s despair. Rav Naḥman rejected this proof, as he interpreted that baraita as serving to exclude one who transferred ownership of the animal temporarily, e.g., for thirty days.

The Gemara adds: And Rabbi Elazar also holds that the liability of a thief to pay the fourfold or fivefold payment applies if he sells it after the owner’s despair of recovering his stolen animal, as Rabbi Elazar says:

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

BavaKamma 68a examines whether a thief's despair-triggered ownership affects fourfold and fivefold payments for slaughtering or selling stolen livestock.