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Babylonian Talmud: Tractate Baba Kamma
it would not be necessary to be so particular.1 But he might perhaps have been in need of money and thus compelled to sell [some of his articles]? — Said R. Ashi: There is the fact that a rumour of burglary in his place had been current in town.2
It was stated: Where articles were stolen and sold by the thief who was subsequently identified, Rab in the name of R. Hiyya said that the owner would have to sue the first,3 whereas R. Johanan in the name of R. Jannai said that he would have to sue the second.4 R. Joseph thereupon said: There is no conflict of opinion:5 in the one case where the purchase took place before Renunciation6 he could sue the second,7 whereas in the other, where it took place after Renunciation8 he would have to sue the first;3 and both of them9 adopt the view expressed by R. Hisda.10 Abaye said to him: Do they9 indeed not differ? Is the case of endowments to priests11 not on a par with [a purchase taking place] before Renunciation12 and there is nevertheless here a difference of opinion? For we learnt: If one asked another to sell him the inside of a cow in which there were included priestly portions he would have to give it to the priest without deducting anything from the [purchase] money; but if he bought it from him by weight he would have to give the portions to the priests and deduct their value from the [purchase] money.13 And Rab thereupon said that the [last] ruling could not be explained except where it was the purchaser who weighed it for himself, for if the butcher14 weighed it for him, the priest would have to sue the butcher!15 — Read: 'He can sue also the butcher,'16 for you might have thought that priestly portions are not subject to the law of robbery;17 we are therefore told [here that this is not so]. But according to Abaye who stated that there was a difference of opinion between them,18 what is that difference? — Whether or not to accept the statement of R. Hisda.19 R. Zebid said: [They differed in regard to a case] where, e.g., the proprietor abandoned hope of recovering the articles when they were in the hands of the purchaser, but did not give up hope so long as they were in the hands of the thief, and the point at issue between them was that while one master20 maintained that it was only Renunciation followed by a change of possession that transfers ownership,21 whereas if the change of ownership has preceded Renunciation22 no ownership is thereby transferred,23 the other master24 maintained that there is no distinction.25 R. Papa said: Regarding the garment itself26 there could be no difference of opinion at all, as all agree that it will have to be restored to the proprietor.27 Where they28 differ here is as to whether the benefit of market overt29 is to be applied to him. Rab in the name of R. Hiyya said that he30 has to sue the first; i.e., the claim of the purchaser for recovery of his money is against the thief, as the benefit of market overt does not apply here,31 whereas R. Johanan stated in the name of R. Jannai that he30 may sue the second, i.e., the claim of the purchaser for repayment should be against the proprietors since the benefit of market overt does apply also here.31 But does Rab really maintain that the benefit of market overt should not apply here?31 Was R. Huna not a disciple of Rab32 and yet when Hanan the Wicked33 misappropriated a garment and sold it and was brought before R. Huna, he said to the plaintiff, 'Go forth and redeem your pledge [in the purchaser's hand]'?34 — The case of Hanan the Wicked was different, for since it was impossible to get any payment from him, it was the same as where the thief was not identified at all. Raba said: 'Where the thief is notorious, the benefit of [a purchase in] market overt would not apply.35 But was Hanan the Wicked not notorious, and yet the benefit of [a purchase in] market overt still applied? — He was only notorious for wickedness, but for theft he was not notorious at all.
It was stated: If a man misappropriated [articles] and paid a debt [with them], or if he misappropriated [them] and paid for goods he received on credit, the benefit of [a purchase in] market overt will not apply, for we are entitled to say,36 'Whatever credit you gave him was not in return for these stolen articles.' If he pledged them for a hundred, their value being two hundred, the benefit of [a purchase in] market overt would apply. But if their value equalled the amount of money lent on them, Amemar said that the benefit of market overt would not apply37 whereas Mar Zutra said that the benefit of [a purchase in] market overt should apply. (The established law is that the benefit of a purchase in market overt should apply.)38 In the case of a sale, where the money paid was the exact amount of the value of the goods, the benefit of [a purchase in] market overt would certainly apply. But where goods of the value of a hundred were bought for two hundred R. Shesheth said that the benefit of [a purchase in] market overt should not apply,39 whereas Raba said that the benefit of [a purchase in] market overt should apply. The established law in all these cases, however, is that the benefit of [a purchase in] market overt should apply, with the exception of the cases where one misappropriated [articles] and paid a debt with them, and where one misappropriated them and paid for goods received on credit.40
Abimi41 b. Nazi, the father-in-law of Rabina had owing to him four zuz42 from a certain person. The latter stole a garment and brought it to him [as a pledge] and borrowed on it four further zuz. As the thief was subsequently identified, the case came before Rabina43 who said: Regarding the former [four zuz] it is a case of a thief misappropriating articles and paying a debt [with them] in which case the plaintiff has to pay nothing whatsoever,44 whereas regarding the latter four zuz you can demand your money and [then] return the garment. R. Cohen demurred: Why not say that the garment was delivered in consideration of the first four zuz [exclusively], so that it would thus be a case of misappropriating articles and paying [with them] a debt, or misappropriating articles and paying [with them] for goods [received] on credit, whereas the further advance of the last four zuz was a matter of mere trust,45 just as he trusted him at the very outset? After being referred from one authority to another, the matter reached the notice of R. Abbahu who said that the law was in accordance with R. Cohen.
A Narashean46 misappropriated a book and sold it to a Papunian47 for eighty zuz, and this papunian went and sold it to a Mahozean48 for a hundred and twenty zuz. As the thief was subsequently identified Abaye said that the proprietor of the book could come and pay the Mahozean eighty zuz49 and get his book back, and the Mahozean would be entitled to go and recover the other forty zuz50 from the papunian.51 Raba demurred saying: If in the case of a purchase from the thief himself the benefit of market overt applies should this not be the more so in the case of a purchase from a purchaser?52 — Raba therefore said: The proprietor of the book can go and pay the Mahozean a hundred and twenty zuz53 and get back his book, and the proprietor of the book is [then] entitled to go and recover forty zuz from the papunian51 and eighty zuz from the Narashean.54
MISHNAH. IF ONE MAN WAS COMING ALONG WITH A BARREL OF WINE AND ANOTHER WITH A JUG OF HONEY, AND THE BARREL55 OF HONEY HAPPENED TO CRACK, AND THE OTHER ONE POURED OUT HIS WINE AND RESCUED THE HONEY INTO HIS [EMPTY] BARREL,
Baba Kamma 115b
HE WOULD BE ABLE TO CLAIM NO MORE THAN THE VALUE OF HIS SERVICES;1 BUT IF HE SAID [AT THE OUTSET], 'I AM GOING TO RESCUE YOUR HONEY AND I EXPECT TO BE PAID THE VALUE OF MY WINE,' THE OTHER HAS TO PAY HIM [ACCORDINGLY]. SO ALSO IF A RIVER SWEPT AWAY HIS ASS AND ANOTHER MAN'S ASS, HIS ASS BEING ONLY WORTH A MANEH2 AND HIS FELLOW'S ASS TWO HUNDRED ZUZ,2 AND HE LEFT HIS OWN ASS [TO ITS FATE], AND RESCUED THE OTHER MAN'S ASS, HE WOULD BE ABLE TO CLAIM NO MORE THAN THE VALUE OF HIS SERVICES; BUT IF HE SAID TO HIM [AT THE OUTSET], 'I AM GOING TO RESCUE YOUR ASS AND I EXPECT TO BE PAID AT LEAST THE VALUE OF MY ASS,' THE OTHER WOULD HAVE TO PAY HIM [ACCORDINGLY].
GEMARA. But why [should the rescuer] not be entitled to say, 'I have acquired title to the rescued object3 as it became ownerless'?4 Was it not taught [in a Baraitha]: 'If a man carrying pitchers of wine and pitchers of oil noticed that they were about to be broken, he may not say, "I declare this terumah5 or tithe with respect to other produce which I have at home," and if he says so, his statement is of no legal validity'?6 — As R. Jeremiah said in another connection, 'Where the bale7 of the press-house was twined around it [it would not become ownerless]';8 so also here in the case of the barrel [we suppose] the bale of the press-house was twined around it.9 [Still, how does the Baraitha state:]10 'And if he says so, his statement is of no legal validity'? Surely it was taught: If a man was walking on the road with money in his possession, and a robber confronted him, he may not say, 'The produce which I have in my house11 shall become redeemed12 by virtue of these coins,'13 yet if he says so, his statement has legal validity?14 — Here [in the latter case] we suppose that he was still able to rescue the money.15 But if he was still able to rescue the money why then should he not be allowed to say so16 even directly? — We suppose he would be able to rescue it with [some] exertion. But still even where there is likely to be a loss,17 why should he not be allowed to say so16 even directly?18 Surely it was taught: If a man has ten barrels19 of unclean tebel20 and notices one of them on the point of becoming broken or uncovered,21 he may say, 'Let this be the terumah [portion] of the tithe22 with respect to the other nine barrels,' though in the case of oil he should not do so as he would thereby cause a great loss to the priest?23 — Said R. Jeremiah: [In this case we suppose that] the bale of the presshouse was still twined around it.24 This is a sufficient reason in the case where the barrel broke, as [the wine remaining] is still fit to be used, but in the case where the barrel became uncovered, for what use is the wine fit any more? For should you argue that25 it is still fit for sprinkling purposes, was it not taught: Water which became uncovered should not even be poured out on public ground, and should neither be used for stamping clay, nor for sprinkling the house,26 nor for feeding either one's own animal or the animal of a neighbour?27 — He may make it good by using a strainer, in accordance with the view of R. Nehemiah as taught: A strainer28 is subject to the law of uncovering;29 R. Nehemiah, however, says that this is so only where the receptacle underneath was uncovered, but if the receptacle underneath was covered, though the strainer on top was uncovered the liquid [strained into the receptacle beneath] would not be subject to the law of uncovering as the venom of a serpent resembles a fungus and thus remains floating in its previous position.30 But was it not taught31 in reference to this that R. Simeon said in the name of R. Joshua b. Levi that this ruling applies only if it has not been stirred, but if it had been stirred it would be forbidden?32 — Even there it is possible [to rectify matters by] putting some [cloth] on the mouth of the barrel and straining the liquid gently through. But if we follow R. Nehemiah, is it permitted to make unclean produce terumah even with respect to other unclean produce? Surely it has been taught: It is permitted to make unclean produce terumah with respect to other unclean produce, or clean produce with respect to other clean produce, but not unclean produce with respect to clean produce,33 whereas R. Nehemiah said that unclean produce is not allowed to be made terumah34 even with respect to unclean produce except in the case of demai!35 — Here also36 we are dealing with a case of demai.
The Master stated: 'Though in the case of oil he should not do so as he would thereby cause a great loss to the priest'. But why is oil different? Surely because37 it can be used for lighting; cannot wine37 similarly be used for sprinkling purposes?38 And should you argue that sprinkling is not a thing of any consequence, did Samuel not say38 in the name of R. Hiyya that for drinking purposes one should pay a sela' per log [of wine], whereas, for sprinkling purposes, two sela's39 per log? We are dealing here with fresh wine.40 But could it not be kept until it becomes old? — He may happen to use it for a wrong purpose.41 But why not also in the case of oil apprehend that he may happen to use it42 for a wrong purpose? — We suppose he keeps it in a filthy receptacle.43 But why not keep the wine also in a filthy receptacle?43 — Since it is needed for sprinkling purposes,44 how could it be placed in a filthy receptacle?
The apprehension of illicit use41 is in itself a point at issue between Tannaim, as taught: If a barrel of terumah wine became unclean, Beth Shammai maintain
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