Bava Kamma 114
אַפּוּמָּא דְחַד. וְלָא אֲמַרַן אֶלָּא חַד, אֲבָל בִּתְרֵי לָא. וְחַד נָמֵי לָא אֲמַרַן אֶלָּא בְּדִינֵי דְמָגִיסְתָּא, אֲבָל בֵּי דַוּוֹאר – אִינְהוּ נָמֵי חַד אַמּוֹמְתָא שָׁדוּ לֵיהּ.
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.
אָמַר רַב אָשֵׁי: כִּי הֲוֵינָא בֵּי רַב הוּנָא, אִיבַּעְיָא לַן: אָדָם חָשׁוּב דְּסָמְכִי עֲלֵיהּ כְּבֵי תְרֵי – מַפְּקִי מָמוֹנָא אַפּוּמֵּיהּ, וְלָא אִיבְּעִי לֵיהּ לְאַסְהוֹדֵי; אוֹ דִלְמָא כֵּיוָן דְּאָדָם חָשׁוּב הוּא – לָא מָצֵי מִשְׁתְּמִיט לְהוּ, וּמָצֵי לְאַסְהוֹדֵי? תֵּיקוּ.
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.
אָמַר רַב אָשֵׁי: הַאי בַּר יִשְׂרָאֵל דְּזַבֵּין לֵיהּ אַרְעָא לְגוֹי אַמִּצְרָא דְּבַר יִשְׂרָאֵל חַבְרֵיהּ – מְשַׁמְּתִינַן לֵיהּ. מַאי טַעְמָא? אִי נֵימָא מִשּׁוּם דִּינָא דְּבַר מִצְרָא, וְהָאָמַר מָר: זְבַן מִגּוֹי, וְזַבֵּין לְגוֹי, לֵיכָּא מִשּׁוּם דִּינָא דְּבַר מִצְרָא!
§ 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?
אֶלָּא דְּאָמְרִינַן לֵיהּ: אַרְבַּעְתְּ לִי אַרְיָא אַמִּצְרַאי. מְשַׁמְּתִינַן לֵיהּ עַד דְּקַבֵּיל עֲלֵיהּ כֹּל אוּנְסָא דְּאָתֵי מֵחֲמָתֵיהּ.
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.
מַתְנִי׳ נָטְלוּ מוֹכְסִין אֶת חֲמוֹרוֹ וְנָתְנוּ לוֹ חֲמוֹר אַחֵר, נָטְלוּ לִסְטִים אֶת כְּסוּתוֹ וְנָתְנוּ לוֹ כְּסוּת אַחֶרֶת – הֲרֵי אֵלּוּ שֶׁלּוֹ, מִפְּנֵי שֶׁהַבְּעָלִים מִתְיָיאֲשִׁין מֵהֶן. הַמַּצִּיל מִן הַנָּהָר אוֹ מִן הַגַּיִיס אוֹ מִן הַלִּסְטִין, אִם נִתְיָיאֲשׁוּ הַבְּעָלִים – הֲרֵי אֵלּוּ שֶׁלּוֹ. וְכֵן נְחִיל שֶׁל דְּבוֹרִים, אִם נִתְיָיאֲשׁוּ – הֲרֵי אֵלּוּ שֶׁלּוֹ.
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.
אָמַר רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה: נֶאֱמֶנֶת אִשָּׁה אוֹ קָטָן לוֹמַר: מִכָּאן יָצָא נְחִיל זֶה. וּמְהַלֵּךְ בְּתוֹךְ שְׂדֵה חֲבֵירוֹ לְהַצִּיל אֶת נְחִילוֹ, וְאִם הִזִּיק – מְשַׁלֵּם מַה שֶּׁהִזִּיק. אֲבָל לֹא יָקוֹץ אֶת סוֹכוֹ עַל מְנָת לִיתֵּן אֶת הַדָּמִים. רַבִּי יִשְׁמָעֵאל בְּנוֹ שֶׁל רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה אוֹמֵר: אַף קוֹצֵץ וְנוֹתֵן אֶת הַדָּמִים.
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.
גְּמָ׳ תָּנָא: אִם נָטַל – מַחְזִיר לִבְעָלִים הָרִאשׁוֹנִים. קָסָבַר: יֵאוּשׁ כְּדִי לָא קְנֵי, וּמֵעִיקָּרָא בְּאִיסּוּרָא אֲתָא לִידֵיהּ.
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.
וְאִיכָּא דְּאָמְרִי: אִם בָּא לְהַחְזִיר – יַחְזִיר לִבְעָלִים רִאשׁוֹנִים. מַאי טַעְמָא? יֵאוּשׁ כְּדִי קָנֵי. מִיהוּ אִי אָמַר: אִי אֶפְשִׁי בְּמָמוֹן שֶׁאֵינוֹ שֶׁלִּי – מַחְזִיר לִבְעָלִים הָרִאשׁוֹנִים.
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.
הֲרֵי אֵלּוּ שֶׁלּוֹ, מִפְּנֵי שֶׁהַבְּעָלִים כּוּ׳. אָמַר רַב אָשֵׁי: לֹא שָׁנוּ אֶלָּא לִסְטִים גּוֹי, אֲבָל לִיסְטִים יִשְׂרָאֵל – לָא; סָבַר: לִמְחַר נָקֵיטְנָא לֵיהּ בְּדִינָא.
§ 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.
מַתְקֵיף לַהּ רַב יוֹסֵף: אַדְּרַבָּה, אִיפְּכָא מִסְתַּבְּרָא! גּוֹיִם, דְּדָיְינִי בְּגֵיתֵי – לָא מִיָּיאַשׁ; יִשְׂרָאֵל, כֵּיוָן דְּאָמְרִי מֵימָר – מִיָּיאַשׁ!
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.
אֶלָּא אִי אִיתְּמַר, אַסֵּיפָא אִיתְּמַר: הַמַּצִּיל מִן הַגּוֹיִם וּמִן הַלִּסְטִים, אִם נִתְיָיאֲשׁוּ הַבְּעָלִים – אִין, סְתָמָא – לָא.
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.
לֹא שָׁנוּ אֶלָּא גּוֹי, מִשּׁוּם דְּדָיְינִי בְּגֵיתֵי; אֲבָל לִסְטִים יִשְׂרָאֵל, כֵּיוָן דְּאָמְרִי מֵימָר – מִיָּיאַשׁ.
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.
תְּנַן הָתָם: עוֹרוֹת שֶׁל בַּעַל הַבַּיִת, מַחְשָׁבָה מְטַמְּאָתָן;
§ 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.
וְשֶׁל עַבְּדָן, אֵין מַחְשָׁבָה מְטַמְּאָתָן.
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.
שֶׁל גַּזְלָן, אֵין מַחְשָׁבָה מְטַמְּאָתָן; וְשֶׁל גַּנָּב, מַחְשָׁבָה מְטַמְּאָתָן.
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.
רַבִּי שִׁמְעוֹן אוֹמֵר: חִילּוּף הַדְּבָרִים – שֶׁל גַּזְלָן מַחְשָׁבָה מְטַמְּאָתָן, שֶׁל גַּנָּב אֵין מַחְשָׁבָה מְטַמְּאָתָן; לְפִי שֶׁלֹּא נִתְיָיאֲשׁוּ הַבְּעָלִים.
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.
אָמַר עוּלָּא: מַחֲלוֹקֶת בִּסְתָם, אֲבָל בְּיָדוּעַ – דִּבְרֵי הַכֹּל יֵאוּשׁ קָנֵי. רַבָּה אָמַר: בְּיָדוּעַ נָמֵי מַחֲלוֹקֶת.
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.
אֲמַר לֵיהּ אַבָּיֵי לְרַבָּה: לָא תִּיפְלוֹג עֲלֵיהּ דְּעוּלָּא, דִּתְנַן בְּמַתְנִיתִין כְּווֹתֵיהּ – ״לְפִי שֶׁלֹּא נִתְיָיאֲשׁוּ הַבְּעָלִים״. טַעְמָא דְּלֹא נִתְיָיאֲשׁוּ הַבְּעָלִים, אֲבָל נִתְיָיאֲשׁוּ הַבְּעָלִים – הֲרֵי אֵלּוּ שֶׁלּוֹ!
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.
אֲמַר לֵיהּ: אֲנַן, ״לְפִי שֶׁאֵין יֵאוּשׁ לַבְּעָלִים״ מַתְנִינַן לַהּ.
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.
תְּנַן: נָטְלוּ מוֹכְסִין חֲמוֹרוֹ כּוּ׳. מַנִּי?
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?
אִי רַבָּנַן – קַשְׁיָא גַּזְלָן, אִי רַבִּי שִׁמְעוֹן – קַשְׁיָא גַּנָּב!
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.
בִּשְׁלָמָא לְעוּלָּא, דְּאָמַר: בְּיָדוּעַ – קָנֵי; הָכָא נָמֵי בְּיָדוּעַ, וְדִבְרֵי הַכֹּל.
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.
אֶלָּא לְרַבָּה, דְּאָמַר: בְּיָדוּעַ נָמֵי מַחְלוֹקֶת; הָא מַנִּי? לָא רַבָּנַן וְלָא רַבִּי שִׁמְעוֹן! בְּלִסְטִים מְזוּיָּין, וְרַבִּי שִׁמְעוֹן הִיא.
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.
אִי הָכִי, הַיְינוּ גַּזְלָן! תְּרֵי גַּוְונֵי גַּזְלָן.
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.
תָּא שְׁמַע: הַגַּנָּב וְהַגַּזְלָן וְהָאַנָּס – הֶקְדֵּשָׁן הֶקְדֵּשׁ, וּתְרוּמָתָן תְּרוּמָה, וּמַעְשְׂרוֹתָן מַעֲשֵׂר.
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.
מַנִּי? אִי רַבָּנַן – קַשְׁיָא גַּזְלָן, אִי רַבִּי שִׁמְעוֹן – קַשְׁיָא גַּנָּב!
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.
בִּשְׁלָמָא לְעוּלָּא, דְּאָמַר בְּיָדוּעַ קָנֵי; הָכָא נָמֵי בְּיָדוּעַ, וְדִבְרֵי הַכֹּל הִיא. אֶלָּא לְרַבָּה, דְּאָמַר בְּיָדוּעַ נָמֵי מַחְלוֹקֶת; הָא מַנִּי? לָא רַבָּנַן וְלָא רַבִּי שִׁמְעוֹן!
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.
הָכָא נָמֵי – בְּלִסְטִים מְזוּיָּין, וְרַבִּי שִׁמְעוֹן הִיא. אִי הָכִי, הַיְינוּ גַּזְלָן! תְּרֵי גַּוְונֵי גַּזְלָן.
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.
וְאִי בָּעֵית אֵימָא: הָא מַתְנִיתָא – רַבִּי הִיא; דְּתַנְיָא, רַבִּי אָמַר: גַּנָּב – כְּגַזְלָן,
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.
וְקַיְמָא לַן כְּגַזְלָן לְרַבִּי שִׁמְעוֹן.
And we maintain, as the Gemara concludes below, that Rabbi Yehuda HaNasi means that the halakha that applies to a thief is like the halakha that applies to a robber according to the opinion of Rabbi Shimon, who holds that the owner despairs of recovering his item once it is stolen by a robber.
גּוּפָא – רַבִּי אוֹמֵר, אוֹמֵר אֲנִי: גַּנָּב – כְּגַזְלָן. אִיבַּעְיָא לְהוּ: כְּגַזְלָן דְּרַבָּנַן קָאָמַר – וְלָא קָנֵי; אוֹ דִלְמָא כְּגַזְלָן דְּרַבִּי שִׁמְעוֹן קָאָמַר, וּקְנֵי?
§ The Gemara examines the matter itself. Rabbi Yehuda HaNasi says: I say that the halakha that applies to a thief is like the halakha that applies to a robber. A dilemma was raised before the Sages: Was Rabbi Yehuda HaNasi saying that the halakha that applies to a thief is like the halakha that applies to a robber according to the opinion of the Rabbis, who hold that the owners do not despair of recovering their item, and a thief therefore does not acquire the items he steals? Or perhaps he was saying that the halakha that applies to a thief is like the halakha that applies to a robber according to the opinion of Rabbi Shimon, who holds that the owners despair of recovering their property, and a thief therefore acquires the stolen items.
תָּא שְׁמַע: נָטְלוּ מוֹכְסִין חֲמוֹרוֹ וְכוּ׳.
The Gemara attempts to resolve the dilemma. Come and hear a proof from the 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. It is therefore apparent that despair is assumed both in the case of a robber, i.e., the customs collector, and in the case of a thief, i.e., the bandits.
מַנִּי? אִי רַבָּנַן, קַשְׁיָא גַּזְלָן! אִי רַבִּי שִׁמְעוֹן, קַשְׁיָא גַּנָּב!
The Gemara clarifies: Whose opinion is expressed in this mishna? If it is in accordance with the opinion of the Rabbis, who assume that the owners despair only in the case of a thief, it is difficult because the mishna assumes that the victim of a robber also despairs of retrieving his property. And if it is in accordance with the opinion of Rabbi Shimon, who assumes that the owners despair only in the case of a robber, it is difficult because the mishna assumes that the victim of a thief also despairs of retrieving his property.
אִי אָמְרַתְּ בִּשְׁלָמָא רַבִּי – כְּגַזְלָן דְּרַבִּי שִׁמְעוֹן קָאָמַר, וְקָנֵי; הָא מַנִּי – רַבִּי הִיא, מִשּׁוּם הָכִי קָנֵי.
The Gemara presents the proof: Granted, if you say that Rabbi Yehuda HaNasi was saying that the halakha that applies to a thief is like the halakha that applies to a robber according to the opinion of Rabbi Shimon, who holds that the owners despair of recovering their property, and a thief therefore acquires the stolen items, in accordance with whose opinion is this mishna? It is in accordance with the opinion of Rabbi Yehuda HaNasi, and it is due to that reason that a thief acquires the stolen goods.
אֶלָּא אִי אָמְרַתְּ כְּגַזְלָן דְּרַבָּנַן קָאָמַר, וְלָא קָנֵי; הָא מַנִּי? לָא רַבִּי וְלָא רַבִּי שִׁמְעוֹן וְלָא רַבָּנַן!
But if you say that Rabbi Yehuda HaNasi was saying that the halakha that applies to a thief is like the halakha that applies to a robber according to the opinion of the Rabbis, and a thief therefore does not acquire the stolen goods, in accordance with whose opinion is this mishna? Since the mishna rules that the owners have presumably despaired with regard to both a thief and a robber, it is not in accordance with the opinion of Rabbi Yehuda HaNasi, and it is not in accordance with the opinion of Rabbi Shimon, and it is not in accordance with the opinion of the Rabbis.
הָכָא בְּמַאי עָסְקִינַן? בְּלִסְטִים מְזוּיָּין, וְרַבִּי שִׁמְעוֹן הִיא. אִי הָכִי, הַיְינוּ גַּזְלָן! תְּרֵי גַּוְונֵי גַּזְלָן.
The Gemara responds: With what are we dealing here? We are dealing with an armed bandit, who is considered a robber because he steals using force and aggression, and the mishna is in accordance with the opinion of Rabbi Shimon, who holds that despair is assumed in the case of a robber. The Gemara asks: If so, this is identical to the case of a robber, i.e., the mishna’s first case of the customs collector, and there is no reason for the mishna to teach the same halakha twice. The Gemara answers: The mishna wishes to teach the halakha with regard to two different types of robbers.
תָּא שְׁמַע: הַגַּנָּב וְהַגַּזְלָן וְהָאַנָּס – הֶקְדֵּשָׁן הֶקְדֵּשׁ, וּתְרוּמָתָן תְּרוּמָה, וּמַעְשְׂרוֹתָן מַעֲשֵׂר.
Come and hear a different proof based upon the aforementioned 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.
מַנִּי? אִי רַבָּנַן – קַשְׁיָא גַּזְלָן, אִי רַבִּי שִׁמְעוֹן – קַשְׁיָא גַּנָּב!
Whose opinion is expressed in this baraita? If it is in accordance with the Rabbis, it is difficult because the baraita assumes that the victim of a robber also despairs of retrieving his property, and therefore the robber’s act of consecration or separation of teruma or tithes is valid. 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.
אִי אָמְרַתְּ בִּשְׁלָמָא גַּנָּב כְּגַזְלָן דְּרַבִּי שִׁמְעוֹן קָאָמַר, מִשּׁוּם הָכִי קָנֵי; אֶלָּא אִי אָמְרַתְּ גַּנָּב כְּגַזְלָן דְּרַבָּנַן, הָא מַנִּי?
Granted, if you say that Rabbi Yehuda HaNasi was saying that the halakha that applies to a thief is like the halakha that applies to a robber according to the opinion of Rabbi Shimon, who holds that the owner despairs of recovering his property, it is due to that reason that a thief therefore acquires the stolen items. But if you say that the halakha that applies to a thief is like the halakha that applies to a robber according to the opinion of the Rabbis, in accordance with whose opinion is this baraita written?
בְּלִסְטִים מְזוּיָּין, וְרַבִּי שִׁמְעוֹן הִיא. אִי הָכִי, הַיְינוּ גַּזְלָן! תְּרֵי גַּוְונֵי גַּזְלָן.
The Gemara responds: When the baraita refers to a thief, it is actually referring to an armed bandit, who is legally considered a robber, and it is in accordance with the opinion of Rabbi Shimon, who holds that victims of a robber despair of recovering their property. The Gemara asks: If so, this is identical to the case of a robber that is mentioned in the baraita. The Gemara answers: The baraita wishes to teach the halakha with regard to two different types of robbers.
אֲמַר לֵיהּ רַב אָשֵׁי לְרַבָּה: תָּא שְׁמַע, דְּמַתְנֵי רַבִּי לְרַבִּי שִׁמְעוֹן בְּרֵיהּ: לֹא דָּבָר שֶׁיֵּשׁ בּוֹ אַחְרָיוּת מַמָּשׁ; אֶלָּא אֲפִילּוּ פָּרָה וְחוֹרֵשׁ בָּהּ, חֲמוֹר וּמְחַמֵּר אַחֲרָיו – חַיָּיבִין לְהַחְזִיר, מִפְּנֵי כְּבוֹד אֲבִיהֶן.
Rav Ashi said to Rabba: Come and hear a proof from Rabbi Yehuda HaNasi’s own interpretation of the mishna (111b) that states that children who inherit an item that was stolen by their father are obligated to return it to the owner if it is something that serves as a legal guarantee of a loan, e.g., land. Rabbi Yehuda HaNasi would teach Rabbi Shimon, his son, that the mishna is not referring only to something that may actually serve as a legal guarantee, i.e., land. Rather, it is referring even to a cow that he plows with, or a donkey that he drives by directing it from behind, which the heirs are obligated to return because of the honor of their father.
טַעְמָא מִפְּנֵי כְּבוֹד אֲבִיהֶן, הָא לָאו כְּבוֹד אֲבִיהֶן – לָא; שְׁמַע מִינַּהּ: רַבִּי – גַּזְלָן דְּרַבִּי שִׁמְעוֹן קָאָמַר! שְׁמַע מִינַּהּ.
The Gemara infers: The reason that the heirs must return the stolen item is due to the honor of their father. But if it were not for the honor of their father, they would not be required to return it. Conclude from it that Rabbi Yehuda HaNasi was saying that the halakha that applies to a thief is like the halakha that applies to a robber according to the opinion of Rabbi Shimon. The Gemara affirms: Conclude from it that this is so.
וְכֵן נְחִיל שֶׁל דְּבוֹרִים. מַאי ״וְכֵן״?
§ The mishna teaches: And so too, with regard to a swarm of bees, if the owners despaired of retrieving the bees, they belong to the one who found them. The Gemara inquires: What is the reason that the mishna includes the case of the bees, which begins with the term: And so too?
הָכִי קָאָמַר: אֲפִילּוּ נְחִיל שֶׁל דְּבוֹרִים, דְּקִנְיָן דְּרַבָּנַן הוּא. סָלְקָא דַּעְתָּךְ אָמֵינָא: הַאי, כֵּיוָן דְּרַבָּנַן בְּעָלְמָא הוּא דְּקָנֵי לֵיהּ – אֲפִילּוּ סְתָמָא נָמֵי מִיָּיאַשׁ; קָא מַשְׁמַע לַן: אִם נִתְיָיאֲשׁוּ הַבְּעָלִים – אֵין, אִי לָא – לָא.
The Gemara explains: This is what it is saying: The halakha stated by the mishna applies even to a swarm of bees, which is the property of the owners via a rabbinic form of acquisition due to the fact that one cannot effect a legal acquisition of bees by Torah law. It might enter your mind to say that in this case, since one acquires the swarm of bees only by rabbinic law, even where the owners’ response is unspecified it can be assumed that they despair of recovering the bees, and the finder may keep them. To counter this, the mishna teaches us that if it is known that the owners of the bees despaired of recovering them, yes, the finder may keep the bees; if they did not despair, no, he may not keep them.
אָמַר רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה: נֶאֱמֶנֶת אִשָּׁה וְקָטָן כּוּ׳.
§ The mishna teaches that Rabbi Yoḥanan ben Beroka said: A woman or a minor is deemed credible to say: It was from here that this swarm emerged, and it therefore belongs to a certain individual.
אִשָּׁה וְקָטָן בְּנֵי עֵדוּת נִינְהוּ? אָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל: הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן שֶׁהָיוּ בְּעָלִים מְרַדְּפִין אַחֲרֵיהֶם, וְאִשָּׁה וְקָטָן מַסִּיחִין לְפִי תּוּמָּם, וְאוֹמֵר: מִכָּאן יָצָא נְחִיל זֶה.
The Gemara asks: Are a woman and a minor eligible for testimony? The halakha is that women and minors cannot present testimony in court, so how can Rabbi Yoḥanan ben Beroka rule that they are deemed credible? The Gemara explains that Rav Yehuda said that Shmuel said: Here, we are dealing with a case where the owners were pursuing the bees, and the woman and the minor were speaking offhandedly and saying: It was from here that this swarm emerged. In this context, it can be assumed that the individual identified as the owner is the real owner of the bees, even in the absence of formal testimony in court.
אָמַר רַב אָשֵׁי: אֵין מֵסִיחַ לְפִי תּוּמּוֹ כָּשֵׁר – אֶלָּא לְעֵדוּת אִשָּׁה בִּלְבָד.
Having mentioned a case of offhand remarks, the Gemara states that Rav Ashi says: Information gleaned from one who speaks offhandedly is valid only with regard to testimony enabling a woman to remarry, as the Sages were lenient and decreed that the incidental remarks of certain individuals who are not eligible to serve as witnesses may be relied upon in such a case.
אֲמַר לֵיהּ רָבִינָא לְרַב אָשֵׁי: וְלָא? וַהֲרֵי נְחִיל שֶׁל דְּבוֹרִים – מֵסִיחַ לְפִי תּוּמּוֹ הוּא! שָׁאנֵי נְחִיל שֶׁל דְּבוֹרִים, דְּקִנְיַן דְּרַבָּנַן הוּא.
Ravina said to Rav Ashi: And is it so that one does not rely upon offhand remarks in other situations? But the case in the mishna of a swarm of bees is a case of one who speaks offhandedly, and the halakha is that he is deemed credible. Rav Ashi answered: A swarm of bees is different, as it is the property of its owners via a rabbinic form of acquisition. Consequently, the Sages relied on offhand remarks.
וּדְאוֹרָיְיתָא לָא? וְהָאָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל: מַעֲשֶׂה בְּאָדָם אֶחָד שֶׁהָיָה מֵסִיחַ לְפִי תּוּמּוֹ, וְאוֹמֵר: ״זְכוּרַנִי כְּשֶׁאֲנִי תִּינוֹק, וּמוּרְכָּבַנִי עַל כְּתֵיפוֹ שֶׁל אַבָּא, וְהוֹצִיאוּנִי מִבֵּית הַסֵּפֶר, וְהִפְשִׁיטוּנִי אֶת כֻּתׇּנְתִּי, וְהִטְבִּילוּנִי לֶאֱכוֹל בִּתְרוּמָה לָעֶרֶב״.
The Gemara asks: And is there no case where offhand remarks expressed by those who are ineligible to testify in court would be accepted by Torah law? But doesn’t Rav Yehuda say that Shmuel says: There was an incident involving a certain person who was speaking offhandedly and saying: I remember when I was a child and I would still ride on father’s shoulder. And they took me from school, and removed my tunic, and immersed me in a ritual bath so that I would be able to partake of teruma that evening.
וְרַבִּי חֲנִינָא מְסַיֵּים בַּהּ הָכִי: ״וַחֲבֵירַי בְּדֵילִין מִמֶּנִּי, וְהָיוּ קוֹרִין אוֹתִי: יוֹחָנָן אוֹכֵל חַלּוֹת״. וְהֶעֱלָהוּ רַבִּי לַכְּהוּנָּה עַל פִּיו!
And Rabbi Ḥanina would conclude his retelling of the incident as follows: That individual then went on to say: And my friends would separate themselves from me, and they would call me: Yoḥanan, eater of ḥallot, a reference to the portion of dough given to the priests, which has the same status as teruma. And after hearing this anecdote, Rabbi Yehuda HaNasi elevated him to the priesthood and granted him the right to partake of teruma based on his statement. Since it is prohibited for non-priests to consume teruma by Torah law, it is apparent that offhand remarks may be relied upon even with regard to Torah law, even in cases unrelated to enabling a woman to remarry.
בִּתְרוּמָה דְּרַבָּנַן.
Rav Ashi answers: Rabbi Yehuda HaNasi granted him the right to partake of produce that is teruma only by rabbinic law, as he holds that the requirement to separate teruma after the destruction of the Temple is by rabbinic law. One can still posit that offhand remarks made by individuals who are ineligible to testify in court are not deemed credible with regard to Torah law.
וְאַכַּתִּי, דְּאוֹרָיְיתָא לָא? וְהָא כִּי אֲתָא רַב דִּימִי אָמַר רַב חָנָא קַרְטִיגָנָא, וְאָמְרִי לַהּ רַב אַחָא קַרְטִיגָנָא מִשְׁתַּעֵי: מַעֲשֶׂה בָּא לִפְנֵי רַבִּי יְהוֹשֻׁעַ בֶּן לֵוִי, וְאָמְרִי לַהּ מַעֲשֶׂה בָּא לִפְנֵי רַבִּי, בְּתִינוֹק אֶחָד שֶׁהָיָה מֵסִיחַ לְפִי תּוּמּוֹ, וְאָמַר: ״אֲנִי וְאִמִּי נִשְׁבִּינוּ לְבֵין הַגּוֹיִם, יָצָאתִי לִשְׁאוֹב מַיִם – דַּעְתִּי עַל אִמִּי, לִלְקוֹט עֵצִים – דַּעְתִּי עַל אִמִּי״.
The Gemara asks: And still, is there no other case where offhand remarks made by those who are ineligible to testify in court would be accepted by Torah law? But when Rav Dimi came from Eretz Yisrael, didn’t he say that Rav Ḥana of Carthage [Kartigna], and some say that it was Rav Aḥa of Carthage, related: An incident came before Rabbi Yehoshua ben Levi, and some say that this incident came before Rabbi Yehuda HaNasi, with regard to a certain child who was speaking offhandedly and said: My mother and I were captured and held among the gentiles. When I would go out to draw water, my mind was on my mother, and when I would go out to gather wood, my mind was on my mother. Since the child was always conscious of his mother, he was aware that she was not violated by her captors.
וְהִשִּׂיאָהּ רַבִּי עַל פִּיו לַכְּהוּנָּה!
The Gemara concludes the statement of Rav Dimi and explains the challenge: And Rabbi Yehuda HaNasi married her to a priest based on his statement. Since it is prohibited by Torah law for a priest to marry a woman who has engaged in sexual intercourse with a man forbidden to her by Torah law and with whom she cannot establish a marital bond, e.g., a gentile, it is clear that Rabbi Yehuda HaNasi relied on an offhand remark even with regard to a prohibition by Torah law.
בִּשְׁבוּיָה הֵקֵילּוּ.
The Gemara answers: The Sages were lenient with regard to a captured woman. By Torah law, a woman taken captive may be presumed to remain permitted to a priest, and it is the Sages who decreed that she is forbidden due to the concern that she was raped. It is this rabbinic decree that may be disregarded on the basis of offhand remarks.
אֲבָל לֹא יָקוֹץ אֶת סוֹכוֹ [וְכוּ׳]. תַּנְיָא, רַבִּי יִשְׁמָעֵאל בְּנוֹ שֶׁל רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה אוֹמֵר: תְּנַאי בֵּית דִּין הוּא, שֶׁיְּהֵא יוֹרֵד לְתוֹךְ שָׂדֶה שֶׁל חֲבֵירוֹ וְקוֹצֵץ סוֹכוֹ שֶׁל חֲבֵירוֹ, לְהַצִּיל אֶת נְחִילוֹ. וְנוֹטֵל דְּמֵי סוֹכוֹ מִתּוֹךְ נְחִילוֹ שֶׁל חֲבֵירוֹ.
§ The mishna teaches: 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. It is taught in a baraita that Rabbi Yishmael, son of Rabbi Yoḥanan ben Beroka, says: It is a stipulation of the court, which takes effect even without being confirmed by individuals, that one will be permitted to enter another’s field and cut off another’s branch in order to salvage his own swarm of bees. And the owner of the field then collects the value of his branch from his fellow’s swarm.
וּתְנַאי בֵּית דִּין הוּא, שֶׁיְּהֵא שׁוֹפֵךְ יֵינוֹ וּמַצִּיל אֶת דּוּבְשָׁנוֹ שֶׁל חֲבֵירוֹ, וְנוֹטֵל דְּמֵי יֵינוֹ מִתּוֹךְ דּוּבְשָׁנוֹ שֶׁל חֲבֵירוֹ. וּתְנַאי בֵּית דִּין הוּא, שֶׁיְּהֵא מְפָרֵק אֶת עֵצָיו וְטוֹעֵן פִּשְׁתָּנוֹ שֶׁל חֲבֵירוֹ, וְנוֹטֵל דְּמֵי עֵצָיו מִתּוֹךְ פִּשְׁתָּנוֹ שֶׁל חֲבֵירוֹ. שֶׁעַל מְנָת כֵּן הִנְחִיל יְהוֹשֻׁעַ לְיִשְׂרָאֵל אֶת הָאָרֶץ.
And it is also a stipulation of the court that one who sees another’s honey barrel break should pour out his own wine and then use the empty wine barrel to salvage the other’s honey, which is more expensive than wine. And the owner of the wine then collects the value of his wine from the other’s honey. And it is also a stipulation of the court that one who sees that another’s donkey has fallen should unload his own wood from his own donkey and load the other’s flax, which is more expensive than wood, in its place. And the owner of the wood then collects the value of his wood from the other’s flax. These stipulations take effect as it was on this condition that Joshua apportioned Eretz Yisrael to the Jewish people.
מַתְנִי׳ הַמַּכִּיר כֵּלָיו וּסְפָרָיו בְּיַד אַחֵר, וְיָצָא לוֹ שֵׁם גְּנֵיבָה בָּעִיר – יִשָּׁבַע לוֹ לוֹקֵחַ כַּמָּה נָתַן, וְיִטּוֹל. וְאִם לָאו – לָאו כֹּל הֵימֶנּוּ, שֶׁאֲנִי אוֹמֵר: מְכָרָן לְאַחֵר, וּלְקָחָן זֶה הֵימֶנּוּ.
MISHNA: In a case of one who recognizes his stolen vessels and scrolls in another’s possession, and a rumor had spread in the city that the former had been the victim of theft, the purchaser, i.e., the one in possession of these items, must take an oath to the victim as to how much money he spent on the purchase, and he then takes that sum of money in exchange for returning the items. And if no such rumor had spread, it is not in the purported victim’s power to assert that the items were stolen, and he is not entitled to demand their return, as I could say: The items were never stolen; rather, the purported victim sold them to another, and this individual who currently possesses the item purchased them from that other person.
גְּמָ׳ וְכִי יָצָא לוֹ שֵׁם גְּנֵיבָה בָּעִיר – מַאי הָוֵי? לֵיחוּשׁ דִּילְמָא זַבְּנִינְהוּ, וְהוּא נִיהוּ קָא מַפֵּיק שְׁמָא!
GEMARA: The Gemara asks: And if a rumor spread in the city that he had been the victim of theft, what of it? Let us suspect that perhaps he sold the items and he himself is spreading the rumor that they were stolen so that he will be able to buy them back.
אָמַר רַב יְהוּדָה אָמַר רַב: כְּגוֹן שֶׁבָּאוּ בְּנֵי אָדָם בְּתוֹךְ בֵּיתוֹ, וְעָמַד וְהִפְגִּין בַּלַּיְלָה, וְאָמַר: נִגְנְבוּ כֵלַיִי. כׇּל שֶׁכֵּן עִילָּא מָצָא!
The Gemara answers that Rav Yehuda said that Rav said: The mishna is discussing a case where people, i.e., guests, came into his house, and he arose at night and shouted [vehifgin], and said: My vessels have been stolen, in which case it seems clear that he was the victim of theft. The Gemara rejects this rationale: On the contrary, the suspicion that he is lying should apply all the more so, as he has found a pretext for claiming that his property was stolen, and it should be suspected that he is taking advantage of the situation dishonestly.
רַב כָּהֲנָא מְסַיֵּים בַּהּ מִשְּׁמֵיהּ דְּרַב: כְּגוֹן שֶׁהָיְתָה מַחְתֶּרֶת חֲתוּרָה בְּתוֹךְ בֵּיתוֹ, וּבְנֵי אָדָם שֶׁלָּנוּ בְּתוֹךְ בֵּיתוֹ – יָצְאוּ, וְאַנְבּוּרְקְרָאוֹת שֶׁל כֵּלִים עַל כִּתְפֵיהֶם, וְהַכֹּל אוֹמְרִים: ״נִגְנְבוּ כֵּלָיו שֶׁל פְּלוֹנִי״.
Rav Kahana would conclude this halakha by stating in the name of Rav: The mishna is discussing a case where a group of people spent the night in his house. And there was a tunnel that had been burrowed into his house, and the people that stayed overnight as guests in his house left with bundles of vessels on their shoulders, and everyone says: So-and-so’s vessels were stolen. In such a case, there is clear evidence that the homeowner was the victim of theft.
וְדִלְמָא כֵּלִים הֲווֹ, סְפָרִים לָא הֲווֹ! אָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: כְּגוֹן דְּקָאָמְרִי נָמֵי סְפָרִים.
The Gemara questions this explanation: But perhaps only vessels were stolen but scrolls were not. Why must the purchaser return the scrolls as well as the vessels? The Gemara answers that Rabbi Ḥiyya bar Abba said that Rabbi Yoḥanan said: The mishna is discussing a case where everyone is saying that scrolls were also stolen.
וְלֵיחוּשׁ דִּלְמָא זוּטְרֵי, וְקָא טָעֵין רַבְרְבֵי! אָמַר רַבִּי יוֹסֵי בַּר חֲנִינָא, דְּקָאָמְרִי: סֵפֶר פְּלוֹנִי וּפְלוֹנִי.
The Gemara asks: But let us suspect that perhaps only small scrolls were taken, while he is claiming that large scrolls were stolen. If this is the case, he is claiming scrolls that do not belong to him. The Gemara answers that Rabbi Yosei bar Ḥanina said: The mishna is discussing a case where people are saying: Such and such a scroll and such and such a scroll were stolen, i.e., it is known which scrolls were taken from the homeowner.
וְדִלְמָא הֲווֹ עַתִּיקֵי, וְקָא טָעֵין חַדְתֵי! אָמַר רַב, כְּגוֹן דְּאָמְרִי: ״הַלָּלוּ כֵּלָיו שֶׁל פְּלוֹנִי, הַלָּלוּ סְפָרָיו שֶׁל פְּלוֹנִי״.
The Gemara questions this as well: But perhaps the scrolls that were stolen were old and had therefore depreciated in value, while he is claiming that new scrolls were taken. If so, he is claiming scrolls that do not belong to him. Rav said: The mishna is discussing a case where people say explicitly: These are so-and-so’s vessels and these are so-and-so’s scrolls. In this case it is known exactly which items were stolen.
וּמִי אָמַר רַב הָכִי? וְהָאָמַר רַב: בָּא בַּמַּחְתֶּרֶת, וְנָטַל כֵּלִים וְיָצָא – פָּטוּר. מַאי טַעְמָא? בִּדְמֵי קְנָנְהוּ!
The Gemara asks: And did Rav actually say this? But doesn’t Rav himself say that a burglar who came in and took vessels and left is exempt from paying for those items? What is the reason for this exemption? It is because he purchases them with his blood. Since a homeowner is allowed to kill a burglar, a burglar is exempt from returning the stolen items, based on the principle: One receives the greater punishment. Consequently, if the burglar himself is exempt, how can one who purchases an item from the burglar be required to return it?
הָנֵי מִילֵּי דִּקְנָנְהוּ – בְּבָא בַּמַּחְתֶּרֶת, דְּמֵעִיקָּרָא מְסַר נַפְשֵׁיהּ לִקְטָלָא; אֲבָל הָנֵי, כֵּיוָן דְּלָא מְסַרוּ נַפְשַׁיְיהוּ לִקְטָלָא – לָא.
The Gemara explains: This matter, that one who steals acquires what he stole, applies only to a burglar, as he initially subjected himself to be killed when he broke into the house. But concerning these thieves, who stayed overnight as guests of the homeowner, since they did not break into the house and thereby subject themselves to being killed, they are not exempt from returning the stolen item.
אָמַר רָבָא: לֹא שָׁנוּ אֶלָּא בַּעַל הַבַּיִת הֶעָשׂוּי לִמְכּוֹר כֵּלָיו, אֲבָל בַּעַל הַבַּיִת שֶׁאֵינוֹ עָשׂוּי לִמְכּוֹר כֵּלָיו –
The Gemara notes that Rava says: We taught that all of these conditions must be met before the purchaser can be forced to return the item only with regard to a homeowner who is wont to sell his vessels, but with regard to a homeowner who is not wont to sell his vessels,
