Talmud - Bava Kamma 69a בבא קמא ס״ט א׳

Rava continues: But if the court says to the thief only: You are obligated to give the stolen animal back to its owner, without actually ordering him to pay, and he subsequently slaughtered or sold the animal, he pays the fourfold or fivefold payment. What is the reason for this? Since the court has not issued a definitive ruling in this matter, he is still considered a thief rather than a robber.

The Gemara answers: No, this is not a challenge to the ruling of Reish Lakish. It is necessary for the baraita to state the halakha in a case where they say to him only: You are obligated to give the stolen animal back to its owner. Consequently, he remains categorized as a thief.

§ The Gemara returns to the matter itself. Rabbi Yoḥanan says: If one stole an item and the owner has not yet despaired of recovering it, neither of them is able to consecrate it. This one, the thief, cannot consecrate it because it does not belong to him, and that one, the owner, cannot consecrate it because it is not in his possession. The Gemara asks: And did Rabbi Yoḥanan actually say this? But doesn’t Rabbi Yoḥanan say: The halakha is invariably in accordance with the ruling of an unattributed mishna, i.e., a mishna that states a halakha without citing it in the name of a particular Sage?

And there is a mishna of this kind (Ma’aser Sheni 5:1) that contradicts Rabbi Yoḥanan’s statement, as we learned in a mishna: With regard to a vineyard in its fourth year, they would demarcate it with clods of earth [bikzozot] placed around it on the ground, to alert people that they may not eat or derive any benefit from its grapes without redeeming them. The Gemara interrupts its quotation of the mishna to explain: This particular distinguishing mark of earth is used because a vineyard in its fourth year is like earth: Just as with regard to earth there is permission to derive benefit from it through its cultivation, so too, with this fruit, when it has been redeemed by means of coins, it is likewise permitted to benefit from it.

The Gemara resumes its citation from the mishna: And a grapevine of orla is demarcated with potsherds [ḥarsit] placed around it, to alert people that its grapes may not be eaten nor may any benefit be derived from them at all (see Leviticus 19:23). The Gemara explains: This particular distinguishing mark is used because orla is like potsherds: Just as no benefit is derived from potsherd, so too, no benefit may be derived from this orla.

The mishna continues: And an area of graves is demarcated with lime, to notify people that the demarcated area is ritually impure and will impart impurity to those who pass over it. The Gemara explains: The reason this particular distinguishing mark is used is that lime is white, like bones. The mishna further states: And one dissolves the lime in water and pours it out around the gravesite. The Gemara explains: This is performed in order that the lime should be whiter than in its non-dissolved form.

The Gemara resumes the citation from the mishna. Rabban Shimon ben Gamliel said: In what case is this statement, that vineyards of the fourth year and of orla require demarcation, said? During the Sabbatical Year. The Gemara explains: The reason is that all fruit that grows during that year may be taken by anyone (see Leviticus 25:5–6), as in that year all fruit is considered to be ownerless property.

The mishna continues: But during the other years of the Sabbatical cycle, when anyone who takes the grapes of another is guilty of theft, there is no requirement to demarcate these vineyards. This is in accordance with the adage: Feed it to the wicked man and let him die. That is, one is not required to take precautions to protect the wicked from the consequences of their own sins. Here too, there is no obligation to warn a thief that the grapes he is stealing are prohibited.

The mishna continues: But the pious ones would set aside some coins and say: Anything that was picked from this vine by passersby shall be desacralized onto these coins. These pious ones maintain that the owner can desacralize the grapes despite the fact that they are no longer in his possession. Similarly, contrary to the opinion of Rabbi Yoḥanan, they would claim that an owner can consecrate a stolen item even though it is no longer in his possession. Since this opinion is cited in the mishna without being attributed to any particular Sage, Rabbi Yoḥanan should have accepted this ruling.

And if you would say: Who is the tanna that taught this practice of the pious ones in the mishna? It is Rabban Shimon ben Gamliel, and Rabbi Yoḥanan did not say his principle that the halakha is always in accordance with an unattributed mishna when it follows an individual opinion; this suggestion does not alleviate the difficulty.

The Gemara explains: But doesn’t Rabba bar bar Ḥana say that Rabbi Yoḥanan says: Wherever Rabban Shimon ben Gamliel taught a statement in the corpus of our Mishna, the halakha is in accordance with his opinion, except for the case of the responsibility of the guarantor (see Bava Batra 173b), and the incident that occurred in the city of Tzaidan (see Gittin 74a), and the dispute with regard to evidence in the final disagreement (see Sanhedrin 31a). Consequently, even if the opinion of the pious ones was cited by Rabban Shimon ben Gamliel, Rabbi Yoḥanan should have accepted it as authoritative.

The Sages say, in explanation of the opinion of Rabbi Yoḥanan: When quoting the declaration of the pious ones, do not say in the past tense: Anything that was picked from this vine by passersby shall be desacralized onto these coins. Rather, say: Anything that will be picked from this vine shall be desacralized onto these coins. In other words, the desacralizing is performed before the fruit is picked, while it is still in the full possession of the owner of the vine.

The Gemara asks: And did Rabbi Yoḥanan actually say such a ruling? Could Rabbi Yoḥanan agree to this reformulation of the declaration of the pious ones? But doesn’t Rabbi Yoḥanan say: The pious ones and Rabbi Dosa said the same thing, i.e., their opinions are equivalent? And Rabbi Dosa says that this declaration is formulated in the past tense, as: Anything that was picked.

As it is taught in a baraita that Rabbi Yehuda says: In the morning the homeowner, i.e., the owner of a field, stands and says: Anything that the poor will pick today that is not rightfully theirs shall hereby be considered ownerless property. The poor are entitled to glean leftover grain from a field after it is harvested (Leviticus 23:22). Yet there are many halakhot involved in determining what produce they are entitled to take, and not all poor people are learned enough to know these halakhot. Consequently, there will inevitably be poor people who will take a certain amount of grain to which they are not entitled. For this reason, the owner of the field should relinquish, in advance, ownership over whatever the poor might unlawfully take.

Rabbi Dosa says: This is not the correct practice. Rather, toward evening the owner should say: Anything that the poor picked today that is not rightfully theirs shall hereby be considered ownerless property. Since Rabbi Yoḥanan stated that the opinions of the pious ones and Rabbi Dosa are the same, this indicates that the declaration of the pious ones was in the past tense, which means that they permitted redemption of fourth-year produce after it was already stolen. If so, the question remains: Why did Rabbi Yoḥanan not accept the ruling of the pious ones as authoritative?

The Gemara answers: Reverse the opinion of Rabbi Yehuda with that of Rabbi Dosa, and that of Rabbi Dosa with that of Rabbi Yehuda. According to this new version of the baraita, Rabbi Dosa does not permit the owner of an item to exercise any control over it after it has been stolen from him. The Gemara asks: Why do you reverse the baraita to avoid a contradiction between the statements of Rabbi Yoḥanan? It is better to reverse the statement of Rabbi Yoḥanan himself, and say that he actually stated: The pious ones and Rabbi Yehuda said the same thing, and leave the baraita intact.

The Gemara says: There is no alternative, as one cannot do otherwise than to reverse the baraita, as that would mean that in this baraita it teaches that Rabbi Yehuda holds that there is a principle of retroactive designation. And we have heard elsewhere that Rabbi Yehuda generally does not accept the principle of retroactive designation, as we learned in a mishna (Demai 7:4):

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

BavaKamma 69a examines whether a thief owes fourfold or fivefold payment before a court ruling, and debates if stolen goods can be consecrated before the owner despairs.