Talmud Tips

For the week ending 6 August 2016 / 2 Av 5776

Bava Kama 65 - 71

by Rabbi Moshe Newman
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Rabbi Akiva said, “Why does the Torah state that if a person (steals an ox or sheep and then) slaughters it or sells it he must pays the owner four or five times its value? Because the person became ‘rooted’ in sin.”

As Rava said (later on the daf), “Because he ‘repeated’ the sin.”

These two statements are taught in the sugya of whether a thief attains full ownership of a stolen item if the person he stole the item from gives up hope (“yi’ush”) of recovering it. The gemara offers the statements of both Rabbi Akiva (in a beraita) and of Rava to give insight into the reason for the special penalty paid for stealing and then slaughtering or selling an ox or sheep, as taught in the Torah (Ex. 21:37) and the Mishna (62b).

The gemara understands that the words of Rabbi Akiva “Because the thief became rooted in sin” mean that his act of slaughter or sale “took roots, i.e. he became ‘strengthened’ in sin since his action accomplished something” (Rashi). The gemara questions this reason: If the penalty is for what the thief did before yi’ush, how can Rabbi Akiva say that his action “did something”? If he sold it before yi’ush everyone would agree that the sale is not valid! Rather, the gemara suggests, he is penalized for his action after yi’ush. But if this is the case, asks the gemara, he should not have to pay any penalty, since he is slaughtering or selling his own item! Therefore, the gemara instead offers the reason that Rava states: “Because he repeated the sin.” And the penalty is imposed only when the thief repeated the sin before yi’ush, while the item still belonged to the victim of the theft.

But what about Rabbi Akiva’s reason, and how we originally understood it? Even after this apparent conclusion it is still possible to accept the reason for the penalty as being that the thief’s second action “took root” and accomplished a real change. This can be so if Rabbi Akiva holds that yi’ush by itself does not result in a valid sale by the thief, but rather that the combination of yi’ush and change of domain (to the seller) effects a valid sale, just as slaughter effects a true change to the item. In both cases his “deed was effective”.

  • Bava Kama 67b, 68a

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