Bava Kamma 099

1:
It is when one reads a mishnah such as our present mishnah that one understands the uncertainties of life in Eretz-Israel in the first few centuries of the current era. Despite the fact that the Romans ruled the country with an iron fist, as it were, – or possibly because they ruled the country with an iron fist – there was a great deal of uncontrolled lawlessness. No one could rest sure of his property or even of his life.

2:
It is axiomatic in halakhic jurisprudence that everyone is entitled to own what is theirs. That rightful ownership can only be abrogated by the decision of the owner. He might, for instance, sell his property; he might give it away as a gift. In such cases he voluntarily relinquishes his property rights. However, if his property is stolen from him by stealth, if he is robbed of it by force, if he is deprived of it by natural causes – in all such cases he continues to be the owner de jure even if he is no longer the owner de facto.

3:
However, there comes a time when one has been deprived of one's property when one gives up all hope of its recovery. At that moment, at the moment when one admits to himself that he has irretrievably lost his property, that he has thereby relinquished his rights of ownership. In other words, one maintains one's rights of ownership of anything that has been stolen or lost by natural causes until the moment one despairs of ever retrieving it.

4:
The first clause of our mishnah raises a problem which must have caused great perplexity to the sages of the mishnaic period, because of the vagaries of everyday life. Roman soldiers could stop any traveller on the road and confiscate his donkey for the needs of the military. After such a confiscation it was highly unlikely that the owner would ever see his property again: SPQR – the Senate and the People of Rome – would never yield property that they had acquired 'legally'. Furthermore, the country was infested with bandits. (One of the great sages of this period, Rabbi Shim'on ben-Lakish, had started off as a bandit!)

5:
It could happen that the officer commanding a military unit or the leader of a team of bandits (and to the ordinary Jew there was little difference between the two) would confiscate a horse and compensate with a donkey – or some other compensation. "We need your horse and we no longer need this donkey." What does the poor Jew do now? He knows that according to halakhah the offered donkey is stolen property, just as his own is now stolen property. Can he accept the offer of compensation knowing that in all probability it was 'legally stolen'. The first clause of our mishnah clarifies that anyone in such circumstances would despair of ever seeing their property again and that therefore, from the halakhic point of view, it was ownerless.

6:
The second clause of our mishnah continues this line of thought. Let's say that David was crossing a wadi when a sudden rainstorm filled the dry bed with a torrent of water and his donkey was swept away from him – and he himself was lucky to escape with his life. Downstream, Joel sees the struggling donkey and, at great peril to himself, he manages to save the animal from the raging waters. To whom does this animal now belong? Is it still David's? Is it now Joel's? Our mishnah states that it all depends on whether David has or has not despaired of recovering his lost animal. (In the next mishnah we shall see how one might deal with such a situation.)

7:
Apiculture (bee keeping) was a flourishing industry in Eretz-Israel at that time. However, one could lose one's bees if they settled as a swarm on the branch of a tree in someone else's property, there to create a new hive. The conditions upon which one could enter another's field were seriously adhered to. Our mishnah gives the owner permission to enter another's property to retrieve his bees, but he does not have the right to cut down the branch upon which they have settled, even if he fully intends to compensate the owner for the loss of his branch.

8:
In such circumstances it is more than possible that the owner of the field in which the bees have made their new home will claim that they are now his: he did not steal them; they came to him quite naturally. If there is testimony available to the court that can establish that the bees came from a certain field then the rightful owner can retrieve his property. Our mishnah states that such testimony may even come from women and children. It is often stated that halakhah discriminates against women testifying. This is only partially true. When we studied Tractate Sanhedrin we learned that in halakhic jurisprudence the two witnesses to a crime were, in fact, the prosecutors (and, if necessary, the executioners as well). But, if the testimony were only concerning what was seen by the witness or expert opinion and such the testimony of women – and even children – was acceptable in court.

9:
It is highly unlikely that a son would disagree with his father in a point of halakhah. So unlikely, that in the absence of irrefutable argument, we should say that such a situation is impossible. It follows that in the case of our present mishnah there is no maḥloket between Rabbi Yoḥanan ben-Baroka and his son, Rabbi Yishma'el. The maḥloket is between Tanna Kamma and Rabbi Yishma'el. It is Tanna Kamma who rules that 'one may not cut down another's branch even with the intention of paying for it.' Rabbi Yishma'el disagrees, but halakhah is in accord with the ruling of Tanna Kamma.