Bava Kamma 100

1:
Our mishnah is simple. Someone stole some books from David's house. David reported the theft to the authorities or at least made it known where he lives that books had been stolen from him. At some later stage he recognizes his books in the possession of Sarah. Sarah claims that she bought the books from a street pedlar. The matter is brought before the court. Sarah must swear on oath that she paid 10 dinars for the books. (We have mentioned before that taking an oath involved invoking God's name, and in earlier times people were very wary of taking God's name in vain. Therefore, an oath was a reasonably efficient way to establish the verity of a claim.)

2:
Sarah must return the books to David, because they rightfully belong to him (assuming that he had not despaired of their recovery). David must reimburse Sarah the 10 dinars that she paid to the pedlar, otherwise she would be out of pocket for no justifiable reason. (Should the thief ever be apprehended, of course, David can sue him for the recovery of this payment.)

3:
However, if David had not reported the matter of the theft he cannot claim anything against Sarah (unless he accuses her of being the thief). The reasoning is that it is just David's word against Sarah's. He cannot prove that the books were stolen, because he never reported the matter to anybody at the time. (There was no such thing as a police force, so it is sufficient that David tell of the theft to someone who can confirm that in court, if necessary.) Sarah could argue that David saw the books in her home, wanted them, and had invented this story in order to take possession of them. Or, as our mishnah says, he could have sold them legally to the person from whom Sarah bought them and now he craftily wants to regain possession.

Concerning BK098 Amnon Ronel writes:

There are lots of things in your explanations that I don't understand.

I shall try to explain what Amnon does not understand item by item.

1) The mishnah begins "If someone steals and uses what he stole to sustain his sons or leaves it to them after his death they are not liable for repayment." You explain in explanations 1 and 2 that we are speaking of theft. But in explanation 11 you distinguish between theft and robbery: "However, if the money he gives to charity is taken from his home we may assume that it is his personal property and not stolen property. He is suspected of robbery, not of theft."

I respond:

This whole series of mishnahs refers to robbery. Already, however, in BK86 I had written:

Our present mishnah (and most of the subsequent mishnahs) refers to a robber rather than to a thief. However, since the halakhic issues are identical in both cases it makes not difference whether the theft was made openly (robbery) or with stealth (theft).

And, indeed, very few people make a distinction even today between theft and robbery. However, in the mishnah presently under discussion such a distinction is made: these tax collectors are not accused of surreptitious theft, like a common burglar; they are accused of robbery. They are accused of openly taking from someone what rightfully belongs to him against his will. (The fact that they will claim that they are doing so legally because that is the system is immaterial to our present discussion. From the halakhic point of view the Roman system merely legalizes daylight robbery.) But, they are not considered to be thieves, burglars. So anything that they have in their private possession is assumed to be legally theirs.

2) In the first clause of the mishnah it explains: "If it was real estate they must make repayment." You bring in explanation 2 two scenarios: a) It could be that David stole money from Sarah and the thief was never discovered. b) Alternatively, David was never discovered to be the thief and he dies unrepentant. I do not see the difference between them. In both cases the thief was never discovered. (In the second scenario he also dies.) I see here only one scenario. Does the expression "leaves it to them" point to his death, "leaving" in the sense of dying?

I respond:

The term "leaving it to them" means exactly what it says: his son inherits the property of the thief, some of which was stolen. The difference between the two scenarios is that in the first scenario the thief uses what he stole for the sustenance of his family during his lifetime: they are therefore inadvertently benefiting from stolen property. In the second scenario the thief's heir inherits what was stolen; he has thus himself become the inadvertent possessor of stolen property.

3) At the end of explanation 2 you state: "An exception to this ruling is if what was stolen is real estate." Does the Hebrew phrase of the mishnah refer to real estate? Is robbery of real estate the second scenario?

I respond:

Yes, the Hebrew term nekhasim she-yesh bahem aḥrayut is the way the sages usually refer to real estate. The word aḥrayut here actually refers to mortgage: property that can be mortgaged. If what was stolen was "moveable property" the heirs do not have to repay what was stolen (according to the mishnah – see what I explained there); if what was stolen was property that can be mortgaged the theft must be repaid.

4) In explanation 6 your wrote: "But all sums that a tax-gatherer may extract from citizens above and beyond what was laid down by the government is considered by halakhah to be stolen property." In other words, robbery by the government is considered to the "the law of the land" but robbery by the tax-gatherer is considered to be stolen property.

I respond:

Yes. (Even though here Amnon was writing with tongue in cheek.)