Bava Kamma 070

1:
Today's shiur is short and simple. Our mishnah defines those actions which constitute theft, regardless of the thief's intentions.

2:
There are two ways of transferring ownership of animals according to Talmudic practice. (Later halakhic jurisprudence recognised some other ways of transfer of ownership as well). When we studied Tractate Kiddushin [1:4] – nearly 15 years ago! – we learned:

Large animals are, of course,animals such as a cow, a bull or an ox; they are animals that cannot be lifted and held in one's arms. Such animals, termed behemah gassah in Hebrew, were an integral part of the economy in Talmudic times. The mishnah states that in the case of such animals the purchaser indicates his assumption of proprietory rights by controlling the animal's movement by pulling it in the direction he wants it to go – away from the vendor. (Today, of course, we would rely on a bill of sale, but in the much more agricultural and rural economy of Talmudic times certain actions were held to constitute "a deal".)

3:
Small animals are animals such as a sheep or a goat. They are termed behemah dakkah in Hebrew, and they also were an integral part of the economy – often kept (despite rabbinic disapproval, as we shall see in the next mishnah) in the courtyards of the tenements of the towns and villages. In the case of small animals the purchaser indicates his assumption of proprietory rights by actually raising the animal in his arms or onto his shoulders. (It was customary to carry sheep and goats by draping them over one's shoulders and holding onto the animal's legs or hooves.)

4:
Actually, the discussion in Gemara Kiddushin on this mishnah indicates that the opinion of the rest of the sages is that all animals can be acquired either through "pulling" or "lifting up" (where possible). Halakhah is, of course, according to the opinion of the rest of the sages.

5:
So, how does this connect with our present mishnah? Our mishnah seeks to define what actually constitutes theft of an animal (or anything else). What counts is not 'taking' it or even doing one of the actions that constitute assumption of proprietary rights. What counts is removing the animal (or whatever else is being stolen) from the owner's premises.

6:
So, if Sara takes hold of David's ox and starts pulling Goliath out of his stall she has not yet committed a theft. Only if she succeeds in pulling Goliath out of David's premises into the public domain is she guilty of theft. Thus, to use the rather extreme situation which our present mishnah offers as explanation, if Goliath drops down dead before Sara can pull him out of David's premises she is not guilty of theft even though theft was her intention and the reason why she was "pulling" the animal.

7:
However, if Sara lifts up onto her shoulders one of David's lambs and walks off with it into the public domain she is guilty of theft – even if the poor animal dies on her in the street!

8:
Furthermore, our mishnah explains that the motives of the thief have nothing to do with establishing the fact of a theft. Sam is a very astute guy. He has a firstborn son, Michah, to redeem (because the Torah [Numbers 18:16] says so):

Instead of paying Mr Cohen five shekels he invites Mr Cohen in the dead of night into David's sheds and transfers to him one of the lambs as payment of the equivalent of five shekels. However, before the unsuspecting Mr Cohen can carry the lamb out of the premises it dies! In such a case Sam is not guilty of theft (nor is Micah redeemed)!

9:
On the other hand, if the thief hands over the animal to another party (a creditor, a volunteer bailee, a borrower, a paid bailee or a lessee) and the animal dies before it can be removed from the premises no act of theft has been committed: the animal never left its owner's premises. But if the animal has been removed from the owner's premises there is a clear case of theft (even though the thief can claim that the animal is not in his possession). See BK028 for an explanation of the four bailees.