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Babylonian Talmud: Tractate Baba Kamma
MISHNAH. IF A MAN HAS ROBBED ANOTHER, OR BORROWED MONEY FROM HIM, OR RECEIVED A DEPOSIT FROM HIM4 IN AN INHABITED PLACE, HE MAY NOT RESTORE IT TO HIM5 IN THE WILDERNESS;6 [BUT IF THE TRANSACTION WAS ORIGINALLY MADE] UPON THE STIPULATION THAT HE WAS GOING INTO THE WILDERNESS, HE MAY MAKE RESTORATION EVEN WHILE IN THE WILDERNESS.
GEMARA. A contradiction could be raised [from the following:] 'A loan can be paid in all places, whereas a lost article [which was found], or a deposit cannot be restored save in a place suitable for this'?7 — Said Abaye: What is meant8 is this: 'A loan can be demanded in any place, whereas a lost article [which was found] or a deposit cannot be demanded save in the proper place.'
[BUT IF THE TRANSACTION WAS ORIGINALLY MADE] UPON THE STIPULATION OF HIS GOING INTO THE WILDERNESS, etc. Is this ruling not obvious? — No, for we have to consider the case where he said to him, 'Take this article in deposit with you as I intend departing to the wilderness,' and the other said to him, 'I similarly intend departing to the wilderness, so that if you want me to return it to you there,9 I will be able to do so.
MISHNAH. IF ONE MAN SAYS TO ANOTHER, 'I HAVE ROBBED YOU, I HAVE BORROWED MONEY FROM YOU, I RECEIVED A DEPOSIT FROM YOU BUT I DO NOT KNOW WHETHER I HAVE [ALREADY] RESTORED IT TO YOU OR NOT,' HE HAS TO MAKE RESTITUTION. BUT IF HE SAYS, 'I DO NOT KNOW WHETHER I HAVE ROBBED YOU, WHETHER I HAVE BORROWED MONEY FROM YOU, WHETHER I RECEIVED A DEPOSIT FROM YOU,' HE IS NOT LIABLE TO MAKE RESTITUTION.
GEMARA. It was stated:10 [If one man alleges:] 'You have a maneh11 of mine,'12 and the other says, 'I am not certain about it,'13 R. Huna and Rab Judah hold that he is liable,14 but R. Nahman and R. Johanan say that he is exempt.15 R. Huna and Rab Judah maintain that he is liable, because where a positive plea is met by an uncertain one, the positive plea prevails, but R. Nahman and R. Johanan say that he is exempt, since money [claimed] must remain in the possession of the holder.16 We have learnt: BUT IF HE SAYS, 'I DO NOT KNOW WHETHER I HAVE BORROWED MONEY FROM YOU,' HE IS NOT LIABLE TO MAKE RESTITUTION. Now, how are we to understand this? If we say that there was no demand on the part of the plaintiff, then the first clause must surely refer to a case where he did not demand it, [and if so] why is there liability? It must therefore refer to a case where a demand was presented and it nevertheless says in the concluding clause,17 'HE IS NOT LIABLE to PAY'!18 — No, we may still say that no demand was presented [on the part of the plaintiff], and the first clause is concerned with one who comes to fulfil his duty towards Heaven.19 It was indeed so stated: R. Hiyya b. Abbah said that R. Johanan stated: If a man says to another, 'You have a maneh of mine,' and the other says, 'I am not certain about it,' he would be liable to pay20 if he desires to fulfil his duty towards Heaven.21
MISHNAH. IF A MAN STOLE A SHEEP FROM THE HERD AND PUT IT BACK [THERE], AND IT SUBSEQUENTLY DIED OR WAS STOLEN, HE WOULD STILL BE RESPONSIBLE FOR IT. IF THE PROPRIETOR KNEW NEITHER OF THE THEFT NOR OF THE RESTORATION, BUT COUNTED THE SHEEP AND FOUND [THE HERD] COMPLETE, [THE THIEF WOULD BE] EXEMPT [IN REGARD TO ANY SUBSEQUENT MISHAP].
GEMARA. Rab said: If the proprietor knew [of the theft], he has similarly to know [of the restoration]; where he had no knowledge [of the theft] his counting exempts [the thief]; and the words [HE] COUNTED THE SHEEP AND FOUND [THE HERD] COMPLETE, refer [only] to the concluding clause.22 Samuel, however, said: Whether the proprietor knew, or had no knowledge [of it], his counting would exempt [the thief], and the words: [IF HE] COUNTED THE SHEEP AND FOUND [THE HERD] COMPLETE [THE THIEF WOULD BE] EXEMPT, refer to all cases.23
R. Johanan moreover said: If the proprietor had knowledge [of the theft], his counting will exempt [the thief], whereas if he had no knowledge [of it], it would not even be necessary to count,24 and the words, [HE] COUNTED THE SHEEP AND FOUND [THE HERD] COMPLETE, refer [exclusively] to the first clause.25 R. Hisda, however, said: Where the proprietor had knowledge [of the theft], counting will exempt [the thief], whereas where he had no knowledge [of the theft], he would have to be notified [of the restoration], and the words, [HE] COUNTED THE SHEEP AND FOUND [THE HERD] COMPLETE, refer [only] to the first clause.25
Baba Kamma 118b
The reason of R. Hisda is because [living things] have the habit of running out1 into the fields.2 But did Raba really maintain this? Has not Raba said: If a man saw another lifting up a lamb of his herd and picked up a clod to throw at him and did not notice whether he put back the lamb or did not put it back, and [it so happened that] it died or was stolen [by somebody else], the thief3 would be responsible for it. Now, does this ruling not hold good even where the herd had subsequently been counted?4 No, only where the proprietor had not yet counted it.
But did Rab really make this statement?5 Did not Rab Say: If the thief restored [the stolen sheep] to a herd which the proprietor had in the wilderness, he would thereby have fulfilled his duty!6 — Said R. Hanan b. Abba: Rab would accept the latter ruling in the case of an easily recognisable lamb.7
May we say that they8 differed in the same way as the following Tannaim: If a man steals a lamb from the herd, or a sela'9 from a purse, he must restore it to the same place from which he stole it. So R. Ishmael, but R. Akiba said that he would have to notify the proprietor.10 Now, it was presumed that both parties concurred with the statement of R. Isaac who said11 that a man usually examines his purse at short intervals. Could it therefore not be concluded that they12 referred to the case of a sela' the theft of which is known to the proprietor13 so that they12 differed in the same way as Rab14 and Samuel?15 — No, they referred to the case of the lamb the theft of which is probably unknown to the owner16 and they12 thus differed in the same way as R. Hisda17 and R. Johanan.18
R. Zebid said in the name of Raba: Where the article19 was stolen from the actual possession of the proprietor, there is no difference of opinion between them20 as in such a case they would adopt the view of R. Hisda;21 but here they20 differ on a case where a bailee misappropriated [a deposit] in his own possession and subsequently restored it to the place from which he misappropriated it, R. Akiba holding that [when he misappropriated the deposit] the bailment came to an end,22 whereas R. Ishmael held that the bailment did not [thereby] come to an end.23
May we still say that [whether or not] counting exempts is a question at issue between Tannaim; for it was taught: If a man robbed another but made [up for the amount by] inserting it in his settlement of accounts, it was taught on one occasion that he thereby fulfilled his duty, whereas it was taught elsewhere that he did not fulfil his duty.24 Now, as it is generally presumed that all parties concur with the dictum of R. Isaac who said that a man usually examines his purse from time to time, does it not follow [then] that the two views differ on this point, viz., that the view that he fulfilled his duty implies that counting secures exemption, whereas the view that he did not fulfil his duty implies that counting does not secure exemption? — It may however be said that if they were to accept the saying of R. Isaac they would none of them have questioned that counting should secure exemption; but they did in fact differ regarding the statement of R. Isaac, the one master25 agreeing with the statement of R. Isaac and the other master26 disagreeing. Or if you wish I may alternatively say that all are in agreement with the statement of R. Isaac, and still there is no difficulty, as in the former statement25 we suppose the thief to have counted the money and thrown it into the purse of the other party,27 whereas in the latter statement28 we suppose him to have counted it and thrown it into the hand of the other party.29 Or if you wish, I may alternatively still say that in the one case28 as well as in the other30 the robber counted the money and threw it into the purse of the other party,27 but while on the latter case28 we suppose some money31 to have been in the purse,32 the former30 deals with a case where no other money was in the purse.
MISHNAH. IT IS NOT RIGHT TO BUY EITHER WOOL OR MILK OR KIDS FROM THE SHEPHERDS,33 NOR WOOD NOR FRUITS FROM THOSE WHO ARE IN CHARGE OF FRUITS.33 IT IS HOWEVER PERMITTED TO BUY FROM HOUSE-WIVES WOOLLEN GOODS IN JUDEA,34 FLAXEN GOODS IN GALILEE OR CALVES IN SHARON,35 BUT IN ALL THESE CASES, IF IT WAS STIPULATED BY THEM THAT THE GOODS ARE TO BE HIDDEN, IT IS FORBIDDEN [TO BUY THEM]. EGGS AND HENS MAY, HOWEVER, BE BOUGHT IN ALL PLACES.
GEMARA. Our Rabbis taught: It is not right to buy from shepherds either goats or kids or fleeces or torn pieces of wool, though it is allowed to buy from them made-up garments, as these are certainly theirs.36 It is Similarly allowed to buy from them milk and cheese in the wilderness34 though not in inhabited places.37 It is [also] allowed to buy from them four or five sheep,38 four or five fleeces, but neither two sheep nor two fleeces. R. Judah Says: Domesticated animals may be bought39 from them but pasture animals may not be bought from them. The general principle is that anything the absence of which, if it is sold by the shepherd, would be noticed by the proprietor, may be bought from the former, but if the proprietor would not notice it, it may not be bought from him.40
The Master stated: 'It is [also] allowed to buy from them four or five sheep, four or five fleeces.' Seeing that it has been said that four may be bought, is it necessary to mention five? — Said R. Hisda: Four may be bought out of five.41 Some however say that R. Hisda stated that four may be bought out of a small herd and five out of a big herd. But the text itself seems to contain a contradiction. You say: 'Four or five sheep, four or five fleeces', implying that only four or five could be bought but not three, whereas when you read in the concluding clause: 'But not two sheep', is it not implied that three sheep may be bought? — There is no contradiction, as the latter statement refers to fat animals42 and the former to lean ones.43
'R. Judah Says: Domesticated animals may be bought from them but pasture animals may not be bought from them.' It was asked: Did R. Judah refer to the opening clause44 in which case his ruling would be the stricter,45 or perhaps to the concluding clause,46 in which case it would be the more lenient?45 Did he refer to the opening clause44 and mean to be more stringent, so that when it says, 'it is allowed to buy from them four or five sheep,' the ruling is to be confined to domesticated animals, whereas in the case of pasture animals even four or five should not be bought? Or did he perhaps refer to the concluding clause46 and mean to be more lenient, so that when it says 'but neither two sheep nor two fleeces', this ruling would apply only to pasture animals, whereas in the case of domesticated animals even two may be bought? — Come and hear: R. Judah Says: Domesticated animals may be bought from them whereas pasture animals may not be bought from them, but in all places four or five sheep may be bought from them.47
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