We begin today’s Mishnah with the case of a person who recognizes his vessels or books in someone else’s possession. In addition, there is public talk in the city that these items were stolen. The person holding them claims that he purchased them.
We accept both claims: We accept that the original owner’s items were stolen, and we accept that the person holding them purchased them. We therefore assume that he bought them from the thief. The buyer must swear how much he paid for the items, and the original owner must reimburse him that amount before taking the items back. In effect, the owner pays the buyer for the return of his own property.
However, if there is no public report that the items were stolen, the original owner is not believed merely because he now wants the items back. Perhaps he sold them and the current holder purchased them from the person to whom he sold them. A person cannot sell an item and later claim, “It was stolen from me,” simply because he regrets the sale. But when there is a public report that the item was stolen, and that report is supported by the circumstances, the owner may reclaim it. He must swear how much the buyer paid and reimburse him that amount.
Let us examine Rashi. Why must Reuven pay Shimon? Reuven is the original owner, and Shimon is the person who bought the item. Why should Reuven have to pay him when the item belongs to Reuven and was stolen from him? Why not simply return the item to its owner?
The explanation is that Shimon did not steal from Reuven. The law is not directed against the buyer. How was Shimon supposed to know that he had purchased a stolen item? He bought it innocently, without knowing that it had been stolen. We believe the original owner because there are public rumors and reports that the item was stolen, so the item can be reclaimed. Nevertheless, Shimon must be compensated because he did not act improperly.
The Gemara asks: What do we care about the public report that the item was stolen? Perhaps the owner himself created the rumors. He sold the item and then began spreading the claim that it had been stolen because he now wants it back. Why should rumors be enough to force the buyer to return the item?
The Gemara presents a case in which people came to Reuven’s house to spend the night. Suddenly, in the middle of the night, they heard him shouting, “They stole my property!” The Gemara asks why that is sufficient. Perhaps the entire incident was staged. The owner could blame the guests and use the episode as an alibi. In fact, the fact that guests were staying in his home could make it easier for him to fabricate the story.
They then discovered a tunnel through which the guests had escaped. The word for such a tunnel is a tunnel dug beneath the ground. The guests were seen leaving with bundles on their shoulders, and everyone saw that they were carrying sacks of property. This makes the report more credible, because the guests were actually observed escaping through the tunnel with bundles.
The Gemara responds that this still does not prove what was in the bundles. The owner claims that books were stolen, but perhaps the bundles contained only vessels. The witnesses answer that they saw books in the bundles. The Gemara then asks whether perhaps they were small, inexpensive books while the owner is claiming that expensive books were stolen. The witnesses respond that they could identify the books themselves. They saw that these particular books belonged to the owner. Therefore, there is no remaining doubt about the identity of the stolen property.
The Gemara asks why the Mishnah mentions both vessels and books. If the law applies to one of them, why is it necessary to mention the other? One answer is that “vessels and books” may refer to two separate cases. Another possibility is that the two categories are simply examples of the same law. This question is discussed by Tosafot Yom Tov.
The Gemara then asks whether this explanation was stated by Rav. Let us return to the case of a person caught stealing from a house. The law concerning a thief who breaks into a home is that the homeowner may kill him, because we presume that the thief may be prepared to kill the homeowner. If the thief is killed, he acquires no rights in the stolen property, and there is no obligation to return the property to him.
If so, why does the Mishnah require the buyer to return the vessels? This appears to be a case involving a tunnel, and the law of a thief entering through such a tunnel is that the thief has no ownership of the property. Why should anyone be required to return anything to anyone else?
The Gemara answers that this applies when the thieves entered through the tunnel itself. The guests in the original story did not enter the house as thieves. They entered as guests, and only afterward stole the property. Since they did not enter with the status of thieves who might be killed, the special rule concerning a thief breaking into a house does not apply.
Rava adds that the Mishnah is discussing a homeowner who normally sells his possessions. In that case, the witnesses must identify the items carefully. If the owner is a person who normally does not sell his possessions, then the identification does not need to be as precise. Regarding books, for example, it is unnecessary to distinguish in great detail between different types of books.
What is the reason? Since this person does not normally sell his possessions, there is a greater likelihood that the items were stolen. Therefore, the circumstances themselves provide stronger support for the owner’s claim, and less detailed identification is required. If he were a person who regularly sold his possessions, we would need more exact identification because there would be a greater possibility that he had actually sold these items.
There is then a discussion about whom the original owner should pursue. Does he pursue the first person, the thief, or the second person, the buyer? One opinion is that he pursues the original thief. The buyer is not the person against whom the claim is directed. If the owner wants the property from the buyer, he must pay him. The buyer purchased the item legitimately, and the owner cannot simply take it from him for free.
The other opinion is that the owner may take the item from the second person, the buyer, without paying him, and then the buyer must pursue the thief. The question is therefore whether the owner’s claim is against the first person, who stole the item, or against the second person, who purchased it.
The Gemara explains that perhaps these opinions are not arguing at all. They may be discussing two different cases: one case in which the original owner had not yet relinquished hope of recovering the item, and another in which he had already done so. Before the owner relinquishes hope, the thief has not acquired the item, and the buyer likewise has not acquired it. The original owner can therefore pursue the buyer and reclaim the item without paying him. Once the owner has relinquished hope, followed by a change of possession, the buyer may acquire the item. In that case, the owner must pursue the thief instead.
Rashi explains that in the case under discussion the identity of the thief is known. If the owner knows who the thief is, he can reclaim the item from the second person and tell the buyer to pursue the thief. There is no need to apply the market safeguard in this case. The buyer may be inconvenienced, but he has recourse: He knows whom to pursue.
The purpose of the market safeguard is to prevent people from being afraid to purchase property. If a person buys an item and someone can later take it away from him without compensation, people will stop buying. However, when the identity of the thief is known, the buyer can recover his money from the thief. Therefore, the market safeguard is not necessarily applied.
According to this approach, everyone agrees with the rule of Rav Chisda: If a thief sells an item before the owner relinquishes hope of recovering it, the owner may pursue the buyer and reclaim the item.
Abaye challenges this understanding. The opinions may in fact be arguing within the position of Rav Chisda. The issue may be whether, in a case where the sale occurred before the owner relinquished hope, the owner pursues the first person, the thief, or the second person, the buyer.
Abaye brings a case involving the gifts that belong to the priests from an animal. A butcher sold the relevant parts of an animal to a non-Jew. Since not all priests had relinquished hope of receiving their gifts, this is clearly a case in which there had been no relinquishment of hope. The question is whom the priests can pursue.
In one case, the butcher tells the buyer, “Give me the internal organs of the cow.” Parts such as the stomach and other internal organs are among the priestly gifts. The law is that the buyer must give those parts to a priest. He cannot return to the butcher and demand a discount, because it was understood that the part belonging to the priests would be given to a priest.
However, if the buyer paid according to the weight of those parts, the case is different. If the butcher weighed the internal organs and charged the buyer for them, then he sold him property that did not belong to him. The buyer must give the parts to a priest, but he can return to the butcher and demand reimbursement for the amount he paid for them.
Rav explains that this law applies when the buyer weighed the parts himself. In that case, the butcher did not sell the priestly gifts as stolen property. The priest has a claim against the buyer, but not against the butcher. If, however, the butcher weighed the parts and included them in the sale, then the butcher himself committed the theft. The priest may pursue the butcher.
Let us read Rashi again. If the butcher sold meat and the buyer understood that the priestly gift would be given to a priest, there is no claim against anyone. The buyer gives the gift to a priest. But when the butcher weighed it and charged for it, he was the one who took money for property belonging to the priest. Therefore, the priest may pursue the butcher.
At first glance, this seems to contradict the rule that, before the owner relinquishes hope, the owner may pursue the buyer. Here, the entire group of priests had not relinquished hope, and yet Rav says that the priest may pursue the butcher. The Gemara answers that Rav is not excluding the buyer. The priest may pursue even the butcher, and certainly may pursue the buyer as well. The novelty is that the priestly gifts are considered stolen even though they originate as property belonging to Heaven. Transferring them to another person can still constitute theft.
The discussion then returns to the apparent disagreement between the two opinions concerning a thief who sells stolen property. One explanation is that there is no disagreement: One opinion refers to a case before the owner relinquished hope, and the other to a case after the owner relinquished hope. Both follow Rav Chisda.
A second explanation is Abaye’s: The opinions are arguing within Rav Chisda’s rule about a sale made before relinquishment of hope. The question is whether the owner pursues the thief or the buyer.
A third explanation distinguishes between the order of events. Perhaps the buyer took possession before the owner relinquished hope. In that case, the change of possession preceded the relinquishment of hope. The disagreement concerns whether this sequence allows the buyer to acquire the item, or whether the owner may still reclaim it from him. If the relinquishment of hope preceded the change of possession, the buyer’s acquisition would be treated differently.
A fourth explanation is offered by Rav Pappa. Everyone agrees that there was no relinquishment of hope. Therefore, everyone agrees that the property must ultimately be returned to the original owner. The disagreement concerns the market safeguard. When stolen property is found in the possession of a buyer, do we require the owner to reimburse the buyer before taking the property back?
One opinion says that the owner may take the property without reimbursing the buyer because the thief is known. The buyer can pursue the thief, so there is no need for the market safeguard. The other opinion says that the buyer must be made whole. The owner takes back his property, pays the buyer, and then pursues the thief. This is precisely the purpose of the market safeguard: A person who purchased in the marketplace should not be left without either the item or the money he paid for it.
The Gemara asks whether Rav truly rejects the market safeguard. Rav Huna, who was a student of Rav, tells a story involving a man known as Hanan the Bad. Hanan stole a garment and sold it. The ruling was that the original owner had to pay the buyer for the garment.
Why did Rav Huna require payment if there was no market safeguard in this case? The answer is that Hanan was known as a bad person, but not specifically as a thief. His reputation did not necessarily warn buyers that anything they purchased from him was stolen. Therefore, the buyer could not be blamed for buying from him, and the market safeguard applied. If he had been a notorious thief, perhaps the buyer would have been expected to exercise greater caution.
The Gemara then discusses a person who stole an item and used it to pay a debt. For example, he stole a book and gave it to a shopkeeper to repay credit that he owed. The ruling is that the owner may take the book from the shopkeeper without reimbursing him. The shopkeeper must pursue the thief.
Why is the market safeguard not applied? When the shopkeeper extended credit, he trusted the debtor to pay. He did not agree to accept this particular item as collateral, nor did he pay money in exchange for the item. The shopkeeper was owed money before the theft took place. Therefore, this case is different from an ordinary marketplace purchase, in which a buyer paid money for an item and would suffer a direct loss if the item were taken back.
The reasoning is that the market safeguard was instituted to ensure that people would continue purchasing items in the marketplace. It was not instituted to encourage people to accept stolen property as payment for debts. The shopkeeper trusted the debtor, and if the debtor had not paid him at all, the shopkeeper would have lost the money anyway. Therefore, the owner may reclaim the item without payment, and the shopkeeper must continue pursuing the debtor for the original debt.
Now consider a collateral arrangement. A lender accepts an item worth two hundred while lending only one hundred. The item is later discovered to have been stolen, and the owner reclaims it. Does the lender receive compensation under the market safeguard?
The law is that the market safeguard does apply in this case. The lender gave money and received the collateral in return. Although the collateral was worth more than the loan, the transaction resembles a purchase. The owner must therefore reimburse the lender for the value of the item that was taken from him.
There is a further case in which the collateral was worth exactly the amount of the loan. One opinion says that the market safeguard does not apply. Normally, a lender takes collateral worth more than the loan in order to ensure repayment. If the collateral is worth exactly the amount lent, this suggests that the lender was relying primarily on the borrower and not on the collateral. The arrangement therefore resembles a simple loan, and the owner does not have to reimburse the lender when the item is reclaimed.
The other opinion disagrees. Even when the collateral equals the loan, the lender did accept the item as security. It is still better than having no collateral at all, and the owner must reimburse him when the item is taken back. The disagreement concerns whether an equal-value collateral arrangement is treated as an ordinary loan or as a transaction based on the collateral.
Another case concerns an item sold for more than its ordinary market value. A thief sells a one-hundred-dollar item for two hundred dollars. When the owner reclaims it, does he have to reimburse the buyer the full two hundred dollars?
One opinion says that the extra amount is considered a gift. People generally do not pay twice the value of an item unless they intend to give something extra to the seller. The market safeguard applies only to the amount that represents the purchase price, not to an additional gift.
The other opinion says that the owner may have to reimburse the buyer the full amount. Sometimes people pay more than an item’s ordinary value because the item is especially desirable or because they want to secure it immediately. Therefore, the fact that the buyer paid more does not necessarily prove that the extra amount was a gift.
These cases are generally attributed to Avimi bar Nasi, who was the father-in-law of Ravina.
Avimi was owed forty zuz. A person gave him a stolen garment as payment for the debt. Avimi did not know that the garment was stolen. He then lent the person another forty zuz. Later, the owner came and reclaimed the garment.
In the first aspect of the case, the garment had been used to repay a debt. There is no market safeguard. Avimi must pursue the person who gave him the garment, and the owner takes it without reimbursing Avimi.
However, the garment may also have served as collateral for the second loan. If the garment was given as security for the additional forty zuz, perhaps the market safeguard applies with respect to that second loan. The Gemara examines whether Avimi relied on the garment as collateral or whether he simply trusted the borrower and would have extended the second loan even without the garment.
The conclusion is that Avimi did not necessarily rely on the garment as collateral. The first forty zuz had already been paid with the garment, and the second forty zuz had been lent because Avimi trusted the borrower. Therefore, there is no market safeguard at all. The owner reclaims the garment, and Avimi must pursue the borrower for the money he is owed.
A further story concerns a thief who stole a book and sold it to someone in Papuna for eighty zuz. The buyer in Papuna then sold it to someone in Mehoza for one hundred twenty zuz. The owner later discovered the theft and wanted to reclaim the book from the second buyer.
The second buyer did not purchase directly from the thief. If the market safeguard protects a person who purchased directly from a thief, it certainly should protect someone who purchased from an ordinary buyer. Therefore, the owner must reimburse the second buyer the full one hundred twenty zuz that he paid. The second buyer can then pursue the person from whom he bought the book for the additional forty zuz, and that person can pursue the thief.
The point is that the buyer should be made whole. It is not enough to reimburse him only the eighty zuz that the thief originally received. The person who purchased the book for one hundred twenty zuz actually lost one hundred twenty zuz when the owner reclaimed it, and the market safeguard is intended to prevent precisely that loss.
We now move to another case. One person has a barrel of wine, and another has a barrel of honey. Honey is more valuable than wine. The honey begins leaking from its barrel, and the person with the wine pours out his own wine in order to use his barrel to save the honey.
The ruling is that he receives compensation only for his labor. He cannot demand payment for the wine he poured out, because no agreement was made that he would be reimbursed for the value of his wine. He acted voluntarily to help the other person. If they had made an explicit arrangement that he would pour out his wine and save the honey in exchange for compensation, then he would be paid according to that agreement.
A similar case involves two donkeys. One person’s donkey is worth two hundred, and his friend’s donkey is also worth two hundred. The first person allows his own donkey to drown in order to save his friend’s donkey. He receives payment only for his labor, unless they had agreed in advance that he would be compensated for the loss of his own donkey.
Rashi explains that when the person saves the honey, he may retain the barrel and receive payment for it if that was part of the arrangement. The Gemara then asks why, absent an agreement, he receives only payment for his labor. He could claim that the honey was already on its way to being lost and that he should be entitled to take it for himself.
The answer is that the honey was not yet completely lost. It was leaking slowly and could still be saved. It was not considered ownerless property. Since the owner still had a reasonable possibility of recovering it, the person who saved it could not simply claim it for himself.
The Gemara compares this to a case involving offerings and tithes. A person is carrying barrels of wine or oil and sees that some of the contents are slowly leaking. He cannot simply designate as an offering something that is entirely on its way to being lost. If the liquid is still recoverable, it remains the owner’s property.
There is, however, a case in which a person is being threatened by a robber while holding money. He may say that the fruits in his house are already rotten and designate them as the required tithes in relation to the money. Even though the money may soon be lost, the designation is effective. The distinction is that the loss is not yet certain. The person may still be able to defend himself and retain the money.
The Gemara then discusses a person who has ten barrels of wine. The wine has not yet been tithed, and one barrel is impure. If one of the remaining barrels is about to break, he may designate the proper tithes from the other barrels. In another case, one barrel is left uncovered and becomes subject to the concern of exposure. The Gemara examines whether the designation is valid when the contents are likely to become unusable.
The general distinction is between a slow loss and a complete or certain loss. When the loss is gradual and the item can still be saved, the person may sometimes make the designation. When the entire item is certainly going to be lost, he may not make the designation in the ideal manner, although a designation that was already made may remain effective.
The Gemara then discusses exposed liquid. If liquid remains uncovered, there is a concern that a snake may have drunk from it and left poison behind. Nevertheless, the liquid may sometimes be used for a limited purpose, such as being sprinkled around the house as a fragrance. It may not be used in ways that could endanger people or animals.
It may not be poured into the street, because people could step in it, suffer a wound, and absorb the poison through the wound. It may not be used to make mortar or cement, because the poison could enter a person’s hands. It may not be given to an animal, because the animal could later be slaughtered and eaten. Nor may it be used in a manner that would expose others to the danger.
The Gemara suggests filtering the liquid. If the potentially poisonous substance remains on the filter while the liquid passes through, perhaps the liquid can be saved. Rabbi Nechemiah discusses a similar arrangement involving two vessels, one above the other, with a filter between them.
If the upper vessel is exposed but the lower vessel is covered, the liquid may be filtered into the lower vessel. The concern would arise if the lower vessel itself were exposed, because perhaps the snake drank directly from it. A filter under the upper vessel would not solve that problem.
The Gemara explains that the concern also depends on whether the upper liquid has been mixed. If it is poured and thoroughly mixed before being filtered, the potentially poisonous material may pass through with the liquid. In that case, the filter may not be sufficient. If the material remains concentrated and can be caught by the filter, the liquid may be saved.
The final question returns to the case of designating tithes from an item that is about to be lost. If the liquid is in the process of leaking slowly, it may still be possible to filter it and preserve it. Therefore, it is not yet considered entirely lost. But if it is exposed in a way that makes it unusable and there is no practical method of saving it, that is a complete loss, and one cannot make the designation in the ideal manner.
The Gemara distinguishes between a situation in which the item is merely endangered and one in which its loss is certain. Where there remains a realistic possibility of saving the item, the designation can be effective. Where the loss is immediate and unavoidable, the designation is not made in the ordinary manner.
That concludes the discussion for today.