בבא קמא דף סט

״חייב אתה ליתן לו״, טבח ומכר – משלם תשלומי ארבעה וחמשה. מאי טעמא? כיון דלא פסקה מילתא, אכתי גנב הוא!

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.

לא צריכא, דאמרי ליה: ״חייב אתה ליתן לו״.

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.

גופא, אמר רבי יוחנן: גזל ולא נתייאשו הבעלים – שניהם אינן יכולים להקדיש. זה לפי שאינו שלו, וזה לפי שאינו ברשותו. ומי אמר רבי יוחנן הכי?

§ 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?

והאמר רבי יוחנן: הלכה כסתם משנה;

ותנן: כרם רבעי היו מציינין אותו בקזוזות אדמה – סימנא כי אדמה, מה אדמה – איכא הנאה מינה, אף האי נמי כי מפרקא – שרי לאיתהנויי מינה.

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.

ושל ערלה בחרסית – סימנא כחרסית, מה חרסית שאין הנאה מינה, אף האי דלית (ביה) הנאה מיניה.

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.

ושל קברות בסיד – סימנא דחיור כעצמות. וממחה ושופך כי היכי דניחוור טפי.

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.

אמר רבן שמעון בן גמליאל: במה דברים אמורים – בשביעית, דהפקר נינהו;

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.

אבל בשאר שני שבוע – הלעיטהו לרשע וימות.

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.

והצנועין מניחין את המעות, ואומרים: ״כל הנלקט מזה, מחולל על המעות הללו״!

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.

וכי תימא: מאן תנא צנועין – רבן שמעון בן גמליאל, ורבי יוחנן כסתם יחידאה לא אמר;

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.

והאמר רבה בר בר חנה אמר רבי יוחנן: כל מקום ששנה רבן שמעון בן גמליאל במשנתנו – הלכה כמותו, חוץ מערב וצידן וראיה אחרונה!

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.

אמרי: לא תימא ״כל הנלקט מזה״, אלא אימא ״כל המתלקט מזה״.

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.

ומי אמר רבי יוחנן הכי? והאמר רבי יוחנן: צנועין ורבי דוסא אמרו דבר אחד; ורבי דוסא ״נלקט״ קאמר!

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.

דתניא, רבי יהודה אומר: שחרית – בעל הבית עומד ואומר: ״כל שילקטו עניים היום, יהא הפקר״.

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.

רבי דוסא אומר, לעיתותי ערב אומר: ״כל שלקטו עניים יהא הפקר״!

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?

איפוך דרבי יהודה לרבי דוסא, ורבי דוסא לרבי יהודה. אמאי אפכת מתניתא? אפכה לרבי יוחנן, ואימא: ״צנועין ורבי יהודה אמרו דבר אחד״!

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.

אמרי: לא סגיא דלא מתהפכא מתניתא; דבהא מתניתין קתני דאית ליה לרבי יהודה ברירה, ושמעינן ליה לרבי יהודה בעלמא דלית ליה ברירה – דתנן:

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):

הלוקח יין מבין הכותים, אומר: שני לוגין שאני עתיד להפריש – הרי הן תרומה; עשרה מעשר ראשון; תשעה מעשר שני; ומיחל ושותה מיד, דברי רבי מאיר.

In the case of one who purchases wine from among the Samaritans [Kutim], if there is reason to suspect that teruma and tithes were not separated, and he cannot separate them before the start of Shabbat, he acts as follows. If there are one hundred log of wine in the barrels, he says: Two log that I will separate in the future are teruma, as the mandated average measure of teruma is one-fiftieth; ten log are first tithe; and a tenth of the remainder, nine log, are second tithe. And he desacralizes the second tithe that he will separate in the future by transferring its sanctity onto money, and he may drink the wine immediately, relying on the separation that he will perform later. This is the statement of Rabbi Meir.

רבי יהודה ורבי יוסי ורבי שמעון אוסרין.

Rabbi Yehuda, Rabbi Yosei, and Rabbi Shimon prohibit one from doing so. The objection of these three Sages is presumably that this arrangement relies on the principle of retroactive designation, as at the time of the declaration the identity of the particular portions of wine that will be teruma and tithes is unknown, and these Sages do not accept this principle. It is apparent from this mishna that Rabbi Yehuda does not accept retroactive designation, and therefore he cannot be the one who said that the owner of the field may issue his declaration of relinquishment in the morning.

אמרי: סוף סוף, אמאי קא אפכת לה למתניתין – משום דקשיא דרבי יהודה אדרבי יהודה; השתא נמי – קשיא דרבי יוחנן אדרבי יוחנן,

The Gemara says: Ultimately, why do you reverse the baraita that contains the opinions of Rabbi Yehuda and Rabbi Dosa? It is because there is a difficulty due to the contradiction between one statement of Rabbi Yehuda and another statement of Rabbi Yehuda. Now too, although you have reversed the baraita, a similar problem remains, as there is a difficulty due to the contradiction between one statement of Rabbi Yoḥanan and another statement of Rabbi Yoḥanan.

דאמרת לרבי יוחנן לא תימא ״כל הנלקט״, אלא אימא ״כל המתלקט״ – אלמא אית ליה ברירה; והא רבי יוחנן לית ליה ברירה,

As you said, according to the opinion of Rabbi Yoḥanan: Do not say that anything that was picked from this vine by passersby shall be desacralized onto these coins. Rather, say that anything that will be picked from this vine shall be desacralized onto these coins. Apparently, Rabbi Yoḥanan here accepts the principle of retroactive designation. But it is established that Rabbi Yoḥanan does not accept the principle of retroactive designation.

דאמר רב אסי אמר רבי יוחנן: האחין שחלקו – לקוחות הן, ומחזירין זה לזה ביובל!

As Rav Asi says that Rabbi Yoḥanan says: Brothers who divided property received as an inheritance are considered purchasers from each other, and as purchasers of land they must return the portions to each other in the Jubilee Year, at which point they may redistribute the property. This demonstrates that Rabbi Yoḥanan does not hold that it is retroactively clarified that each brother’s portion was designated for him directly upon their father’s death, but rather all the land was considered joint property until the brothers traded or bought their respective portions from each other at the time of the distribution of the estate.

אלא לעולם ״כל הנלקט״,

In light of this objection, the Gemara retracts its previous assertion that Rabbi Yoḥanan reformulated the declaration of the pious ones. Rather, the pious ones actually declared in the past tense: Anything that was picked from this vine by passersby shall be desacralized onto these coins, i.e., the desacralizing took place after the grapes were stolen. If so, the question remains: Why did Rabbi Yoḥanan not accept the opinion of the pious ones, but instead ruled that the owner of an item cannot consecrate it after it has been stolen?

ורבי יוחנן סתמא אחרינא אשכח – דתנן: אין הגונב אחר הגנב משלם תשלומי כפל. אמאי? בשלמא לגנב ראשון לא משלם – ״וגנב מבית האיש״,

The Gemara answers: Rabbi Yoḥanan found a different unattributed mishna, which contradicts the opinion of the pious ones. As we learned in the mishna here (62b): One who steals an item after a thief has already stolen it, i.e., one who steals a stolen item, does not pay the double payment to the thief or to the prior owner. Why not? Granted that he does not pay to the first thief, as the verse states: “And it was stolen from the house of the man; if the thief shall be found he shall pay double” (Exodus 22:6), which indicates that the double payment applies in the case of an item “stolen from the house of the man,” i.e., from the owner’s jurisdiction, but not to an item stolen from the thief’s house. But let him pay the double payment to the owner, as it presumably still belonged to the owner when the second thief stole it.

ולא מבית הגנב; אלא לבעלים – נשלם!

אלא לאו שמע מינה: זה לפי שאינו שלו, וזה לפי שאינו ברשותו.

Rather, must one not conclude from this that a stolen item is not under the full jurisdiction of either the owner or the thief? It is not under the jurisdiction of this one, the first thief, because it does not belong to him, and it is not under the jurisdiction of that one, the owner, because it is not in his possession. Therefore, neither of them can consecrate the stolen item.

ומאי חזי(ת) דאזיל בתר ההיא סתמא? ליעביד כי האי סתמא דצנועין!

The Gemara asks: Granted that this unattributed mishna disagrees with the mishna that cites the pious ones, but what did you see that led you to follow that unattributed mishna, the one that discusses the double payment? Let Rabbi Yoḥanan act, i.e., rule, in accordance with this unattributed mishna, which states the practice of the pious ones. On what basis did he choose one mishna over the other?

משום דמסייע ליה קרא: ״ואיש כי יקדש את ביתו קדש לה׳״ – מה ביתו ברשותו, אף כל ברשותו.

The Gemara answers: Rabbi Yoḥanan followed the mishna that discusses the double payment because there is a verse that supports it: “And when a man shall sanctify his house to be holy to the Lord” (Leviticus 27:14), from which it is derived: Just as one’s house is in his possession, so too anything that one consecrates must be in his possession, excluding items that have been stolen from him.

אמר אביי: אי לאו דאמר רבי יוחנן צנועין, ורבי דוסא אמרו דבר אחד, הוה אמינא: צנועין אית להו דרבי דוסא, ורבי דוסא לית ליה דצנועין.

§ Abaye said: If Rabbi Yoḥanan had not said that the pious ones and Rabbi Dosa said the same thing, i.e., their rulings are identical, I would say that the pious ones accept the opinion of Rabbi Dosa, but Rabbi Dosa does not accept the opinion of the pious ones.

צנועין אית להו דרבי דוסא – ומה בגנב עבדו רבנן תקנתא, עניים צריכא למימר? רבי דוסא לית ליה דצנועין – עניים הוא דעבדו להו רבנן תקנתא,

Abaye elaborates: The pious ones accept the opinion of Rabbi Dosa, for the following reason: And if the Sages instituted an ordinance for the sake of a thief, to prevent him from eating unredeemed fourth-year grapes, by allowing the owner to desacralize produce that is no longer in his possession, does it need to be said that they did so for the sake of innocent poor people, as Rabbi Dosa claimed? Conversely, Rabbi Dosa does not accept the opinion of the pious ones, as he says: It is for the sake of poor people that the Sages instituted an ordinance; but the Sages did not institute an ordinance for the sake of a thief, in line with the aforementioned principle: Feed it to the wicked man and let him die.

אבל גנב לא עבדו ליה רבנן תקנתא.

אמר רבא, אי לאו דאמר רבי יוחנן: צנועין ורבי דוסא אמרו דבר אחד, הוה אמינא: מאן תנא צנועין – רבי מאיר היא;

In a similar vein, Rava said: If Rabbi Yoḥanan had not said that the pious ones and Rabbi Dosa said the same thing, I would say that there is a fundamental difference between the cases of fourth-year produce and gleanings taken by the poor, as one could claim: Who is the tanna who taught the ruling of the pious ones? It is Rabbi Meir.

לאו אמר רבי מאיר: מעשר ממון גבוה הוא, ואפילו הכי לענין פדייה אוקמיה רחמנא ברשותיה? דכתיב: ״ואם גאל יגאל איש ממעשרו, חמשתו יסף עליו״ –

Doesn’t Rabbi Meir say that second tithe is property belonging to the Most High, rather than the possession of the one who separated it from his produce, and even so, with regard to redemption of the second tithe the Merciful One establishes it in his possession? As it is written concerning the second tithe: “And if a man will redeem any of his tithe, he shall add to it its fifth part” (Leviticus 27:31).

קרייה רחמנא ״מעשרו״, ומוסיף חומש.

Although according to the opinion of Rabbi Meir, second tithe does not belong to the owner of the produce from which it was separated, nevertheless, with regard to redemption the Merciful One does distinguish between a stranger and one who separated it from his produce, as the Torah refers to the second tithe as “his tithe” and thereby decrees that he, the owner of the crop from which it is separated, can redeem it by adding one-fifth to its value, but no one else can do so. This indicates that although second-tithe produce is not in fact owned by the person, the Torah treats him as the owner of the produce.

כרם רבעי נמי – גמר ״קדש״ ״קדש״ ממעשר, כתיב הכא: ״קדש הלולים״, וכתיב גבי מעשר: ״וכל מעשר הארץ מזרע הארץ מפרי העץ לה׳ הוא קדש״;

With regard to a fourth-year vineyard as well, the Sages derive many of its halakhot from a verbal analogy between second tithe and fourth-year fruit, based on the use of the word “holy” in the context of fourth-year fruit and “holy” in the context of second tithe. It is written here, concerning fourth-year fruit trees: “And in the fourth year all its fruit shall be holy, for giving praise to the Lord” (Leviticus 19:24), and it is written with regard to second tithe: “And all the tithe of the land, whether of the seed of the land or of the fruit of the tree, is the Lord’s; it is holy” (Leviticus 27:30).

מה ״קדש״ דכתיב גבי מעשר – אף על גב דממון גבוה הוא, לענין פדייה אוקמיה רחמנא ברשותיה; אף האי ״קדש״ נמי דכתיב גבי כרם רבעי –

From this analogy it is derived: Just as in the case of the term “holy” that is written in connection to second tithe, even though it is property belonging to the Most High, with regard to redemption the Merciful One establishes it in the jurisdiction of the one who separated it, so too in the context of the word “holy” that is written in connection to the fourth-year vineyard, even though it is not his property, as it belongs to the Most High, with regard to desacralizing the Merciful One establishes it in the vineyard owner’s jurisdiction.

אף על גב דלאו ממון דידיה הוא, לענין אחולי אוקמיה רחמנא ברשותיה;

דהא כי איתיה ברשותיה נמי – הא לאו דידיה הוא, והא מצי מחיל; משום הכי מצי מחיל.

The effect of this determination is that even when the fruit is in his jurisdiction it is not his property, and yet he is able to desacralize it. And due to that reason the owner of the vineyard is able to desacralize the fruit even after a thief has taken it. Even in normal circumstances when one desacralizes his fourth-year fruit he is desacralizing fruit that does not belong to him. Consequently, there is no novelty in the ruling that one can desacralize fruit even after it has been taken by a thief.

אבל גבי לקט – כיון דממונא דידיה, כי איתיה ברשותיה הוא דמצי מפקר ליה, כי ליתיה ברשותיה לא מצי מפקר ליה.

But with regard to gleanings of the poor, since the extra sheaves that the poor people inadvertently take are the property of the owner of the field, it may be claimed that only when those sheaves are in his possession, i.e., they have not been taken by anyone else, can he relinquish his ownership of them, whereas when they are no longer in his possession he cannot relinquish his ownership of them. Consequently, the pious ones, who permitted redemption of fourth-year produce after it had been stolen, would not necessarily agree with Rabbi Dosa, who allowed the relinquishment of stolen sheaves.

אמר רבינא: אי לאו דאמר רבי יוחנן צנועין ורבי דוסא אמרו דבר אחד, הוה אמינא: מאן תנא צנועין – רבי דוסא היא,

In a similar vein, Ravina said: If Rabbi Yoḥanan had not said that the pious ones and Rabbi Dosa said the same thing, I would say: Who is the tanna who taught the opinion of the pious ones? It is Rabbi Dosa. I would have said this so that an unattributed mishna should not present a difficulty to the opinion of Rabbi Yoḥanan. And the reason why this would have resolved the difficulty is that Rabbi Yoḥanan

כי היכי דלא תקשי סתם משנה לרבי יוחנן. ורבי יוחנן –