Bava Kamma 105

1:
Our mishnah is simple and will not require a great deal of explanation. A shepherd is paid to look after a flock of sheep. This means, of course, that he is responsible for the welfare and safety of all the flock in his care. A shepherd is, in fact, a bailee. See BK103, where we detailed the four kinds of bailee. Our shepherd is the last of the four kinds of bailee detailed there:

Someone is being paid for looking after someone else's property.

That means that if he does not return the property to its owner complete and whole he is responsible for the damage he has caused.

2:
The scenario described in the first clause of our mishnah is concerned with a situation in which the shepherd steals a lamb from the flock, but later has second thoughts and restores the lamb to the rest of the flock. I would imagine that in western jurisprudence we would say that because the lamb was restored to the flock the theft is not actionable. However, we must bear in mind that in halakhic jurisprudence not only has a theft taken place but also a sin was committed.

3:
The second clause of our mishnah presents a scenario in which the lamb was stolen, restored and the owner was in no way aware that a theft had taken place.

4:
When we read and re-read these two scenarios it is very difficult not to come to the conclusion that they are essentially the same! What practical difference is there between the first clause and the second clause? In the first clause a lamb was stolen and then restored; and also in the second clause a lamb was stolen and then restored. Yet our mishnah rules that in the first scenario the shepherd must make good his theft whereas in the second scenario he is not liable to do so.

5:
Whenever they encounter a situation such as this the sages assume that there is further information that is lacking here, and that if that information can be restored the mishnah will make sense. This is not as extraordinary as we might at first glance think. Throughout the years we have emphasized the nature of the oral tradition: that originally it was taught and passed on verbally and that therefore brevity was indeed the soul of wit.

6:
The Gemara [BK 118a-b] supplies the missing information. Let us now reconstruct the first clause of our mishnah according to the explanation of the sages:

Someone steals a lamb from the flock and returns it without the owner having any knowledge of the theft. After the restoration it goes missing again – let's say it is stolen yet again. When the owner discovers the fact that he is one lamb short the shepherd will be held responsible and must indemnify the owner for his loss of his lamb. (He had responsibility for the owner's property as a paid bailee; therefore the fact that he was not responsible for the theft which was discovered is irrelevant – to the owner at least.)

7:
In the second clause the shepherd steals a lamb from the flock, has pangs of conscience and restores the lamb to the flock. (Possibly the owner announced his intention to come and count his flock!) In this case the owner was not aware of the theft and when he counts his flock they are all present and accounted for. He has no reason to suspect that his shepherd had been derelict. In such a case, says our mishnah, the shepherd is not liable for any damages.

8:
However, this is not really satisfactory in the eyes of the sages of the Gemara. A sin had been committed and had not been atoned for. Therefore, the final ruling of the sages of the Gemara is as follows:

In the first clause the shepherd must indemnify his employer for the loss of his lamb unless he confesses that he had stolen and also restored the animal. In the second clause the shepherd is liable if he had not confessed to his employer that he had stolen the lamb and had restored it.

I would still welcome suggestions concerning the next tractate to be studied.

I am also considering offering an additional study group, and I would like to know whether people would find interest in it. In recent years we have seen – especially in Eretz-Israel – a growing interest in the Talmud of Eretz-Israel (the so-called "Yerushalmi"). For most people, even those who have some learning in the Babylonian Talmud, the Talmud of Eretz-Israel remains a closed book, unlearned, ignored and 'mysterious'. So, I would like to know how many people would be interested in studying the "Yerushalmi" with me. Please email me, and if a reasonable number of people show interest I shall try the experiment. I emphasize that this new study group would not affect the existing Rabin Mishnah Study Group.