ט״ז באלול ה׳תשע״ו (September 19, 2016)

Bava Kamma 111a-b: Inheriting a Theft

The tenth perek of Massekhet Bava Kamma begins on our daf. Entitled ha-gozel u-ma’akhil (“he who steals and feeds”) it deals with a wide range of subjects, but focuses on what is considered to be gezel (stolen) – when it must be returned and when it need not be returned.

The first Mishna in the perek teaches that when a man steals and feeds his children with his ill-gotten gains, his children will not be obligated to return the theft.

The Rashba points out that even in situations where the children made an honest mistake and believed that an animal that they received from their father belongs to them, if it turns out that it really was borrowed, they will have to pay for it if it no longer exists. Why should a case of theft be any less strict? He explains that in the case of the borrowed animal, the children were obligated to return the animal, while in the case of theft their father may have taken possession of it by making some change in the animal, so by the time they received it, they had no obligation to return it – after all, they are not the thieves.

One case in the Mishna where the children will be obligated to return the money to its owner is in the event that the object that was stolen has on it ahrayut – “responsibility” – they will have to pay. The simplest explanation for ahrayut is that it is real estate, which remains in its original state and must be returned. Nevertheless, the Gemara offers other cases where there will also be an obligation on the children who inherit their father to return monies that he stole. Rabbi Yehuda HaNasi, for example, taught his son, Rabbi Shimon that the intention of the Mishna is to obligate the children to return the stolen object anytime it was clearly stolen – e.g. an ox that was used for plowing or a donkey that was used as a pack animal – in order to honor their father and clear his name.

As far as the halakha is concerned, the Rambam rules (Mishneh Torah, Hilkhot Gezelah 5:6) that following the Ge’onic enactments that required children who inherit their father to pay off all his debts, it is clear that they will be obligated to return what he stole, as well.

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