Bava Kamma - Daf 69
- The צנועין’s practice to redeem",כל הנלקט" כרם רבעי already stolen from them
Rebbe Yochanan taught that one cannot be makdish items stolen from him, לפי שאינו ברשותו – because it is not in his possession. The Gemara asks: A Mishnah states that people would mark the prohibited produce of their field for the benefit of passersby (for example, כרם רבעי was marked with clods of earth, which can provide benefit, like כרם רבעי which can be redeemed). Rabban Shimon ben Gamliel said this was only done during shemittah, where produce is hefker, but other years, where passersby may not take his produce, הלעיטהו לרשע וימות – stuff the wicked one with the prohibited fruit and let him die from his sins! The Mishnah concludes that the צנועין – discreet ones would ensure that one taking their produce would not transgress כרם רבעי, by setting aside money and declaring: כל הנלקט מזה מחולל על המעות הללו – whatever was picked from this vineyard shall be rendered chullin on this money. The Gemara asks, since this practice indicates that one can redeem stolen goods (demonstrating he retains full ownership), Rebbe Yochanan should rule that way, since he always rules like anonymous Mishnayos!?
- גונב מן הגנב proves that a stolen item is "אינו ברשותו" of its owner
The Gemara suggests that the צנועין actually said "כל המתלקט" – whatever will be picked (is redeemed now), but this is ultimately rejected. Eventually, the Gemara answers that Rebbe Yochanan did not rule like the above anonymous Mishnah, because he found an opposing Mishnah on Daf 62b, which taught that one who steals from a thief does not pay כפל. He does not pay כפל to the first thief because the Torah says כפל is paid for stealing "מבית האיש" – from the man’s house, implying: but not from the thief’s house. But why does he not pay כפל to the true owner? It must be לפי שאינו ברשותו – because it is not in his possession, i.e., his ownership of the stolen goods is diminished. Rebbe Yochanan ruled like this Mishnah (and not the Mishnah about צנועין) because this position is supported by a passuk: ואיש כי יקדיש את ביתו קדש לה' – if a man consecrates his house to be holy for Hashem, which teaches: מה ביתו ברשותו – just as his house is in his possession (because it cannot be taken away), אף כל ברשותו – so too anything he wishes to be makdish must be in his possession.
- Acc. to Rebbe Meir that maaser sheni is ממון גבוה, one can even redeem stolen produce
Rebbe Yochanan had said that the צנועין, who redeemed כרם רבעי after it was stolen, shared an opinion with Rebbe Dosa, who said one can be mafkir grain which was mistakenly taken by the poor (due to ignorance of the laws of leket). Rava commented that if not for Rebbe Yochanan’s statement comparing the two rulings, he would have said that the צנועין’s practice was based on Rebbe Meir’s opinion: He holds מעשר ממון גבוה הוא – maaser [sheni] is Divine property, yet לענין פדייה אוקמיה רחמנא ברשותיה – the Torah placed it in his possession regarding redemption, because only the “owner” adds an extra fifth when redeeming. The same applies to כרם רבעי (based on a gezeirah shavah). Since the Torah considers him the “owner” of כרם רבעי regarding redemption, although it is not legally his, he can also redeem it after it is stolen from him. In contrast, the צנועין could hold that one cannot be mafkir leket after it was taken from his possession (like Rebbe Dosa held). Rebbe Yochanan, by equating the two rulings, informs us the צנועין do not hold like Rebbe Meir, and hold one can always redeem or be mafkir stolen property.
