Our daf today contains the following mishnah:
If tax collectors took one’s donkey and gave another in its place, or if bandits stole one’s clothes and gave others in their place, one may keep these, because the owners have despaired of retrieving them….
The mishnah relies on an important rabbinic principle of lost and found objects: If an owner despairs of ever finding their item, s/he gives up his/her claim on that object, rendering it ownerless. Thus, whoever finds or acquires the object may legally claim and keep it.
Tax collectors, in the time of the rabbis, were assumed to be dishonest, because the position was easy to abuse. Collecting money for the government gave tax collectors nearly unilateral authority to seize others’ assets, and they often therefore helped themselves to whatever they liked. Because the tax collectors had so much power, people despaired of reclaiming their stolen property. Similarly, we assume that something a bandit owns is likely stolen. Therefore, the mishnah assumes, anything that a tax collector or bandit gives to you is likely stolen property, and it is almost certain the owner has despaired of it — so you can keep it.
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Immediately after this, the Gemara introduces a beraita, another tannaitic text, that seems to dispute the mishnah:
If one took something (from a tax collector or bandit), one returns it to the original owners.
The Gemara proceeds to argue about the reasoning of the anonymous tanna who authored this beraita: Does the tanna hold that despair of the original owner is not enough to cancel their ownership, and therefore the person who receives it from the tax collectors is obligated to try to return it? Or does the tanna hold that despair does release the object into the public domain, and the tanna then reasons that one is not required to return the donkey, but one may in fact return it.
According to the first explanation, the beraita disagrees with the mishnah, but according to the second explanation, the beraita is not in direct contradiction with the mishnah. Instead, it adds that returning the stolen property received from a tax collector is recommended, even if not required.
The debate is played out amongst early talmudic commentators. Rashi understands the beraita to contradict the mishnah, requiring the person who receives the stolen item to return it. Ra’avad, on the other hand, thinks the two need not contradict: In the mishnah, he suggests, the owner has not come to claim one’s goods, but in the beraita, they have. Alternatively, the Ra’avad suggests, the person may keep the object but must still reimburse the original owners. In this case, the beraita reads as an explanation of the mishnah: The object belongs to the person who received it, but one needs to compensate the original owners. The Meiri also reconciles the beraita with the mishnah by saying returning the item is recommended but not required: “… one doesn’t need to return it even to fulfill one’s heavenly obligations. In any event, if one is conscientious, one will be stringent upon oneself and say, ‘I can’t take money which isn’t mine — I will take it (from the tax collector) anyway and return it to the original owners.’”
What is interesting about the debate in the rishonim, the early talmudic commentators, is that the question is not whether the beraita disagrees with the mishnah, because the Gemara has already offered a solution to the contradiction. The debate focuses on the first interpretation of the beraita, and whether this reading of the beraita contradicts the mishnah or not. It becomes an important debate, as later on in the daf the Gemara seems to assume this understanding: that despair alone is not enough to acquire an object. However, whether debating the meaning of the beraita itself or the Gemara’s interpretation of the beraita, we are left with the same question from the commentaries: How do we interpret seemingly contradictory texts? Do we allow them to argue with each other, or do we try to reconcile them?
Read all of Bava Kamma 114 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on February 24th, 2024. If you are interested in receiving the newsletter, sign up here.
