Bava Kamma - Daf 114
- Assuming יאוש regarding a גנב or גזלן, and where יאוש is known
A Mishnah states: של גנב – Regarding unprocessed hides stolen secretly by a thief, מחשבה מטמאתן – his “thought” renders them susceptible to tumah. Because the owner despaired of retrieving them, the thief acquires them, and his decision to use them as utensils (e.g., mats) makes them susceptible to tumah. If a גזלן stole them forcefully, the owner does not despair, because he hopes to sue the known robber in court. Rebbe Shimon holds the opposite (he despairs regarding a robber who fearlessly robbed him, but not a thief who stole secretively). Ulla said the machlokes is only about presuming the owner’s יאוש, but בידוע – where it is known he despaired, everyone agrees the יאוש is effective by both a גנב and a גזלן. Rabbah says the machlokes applies even where his despair was known, because his declared יאוש is not wholehearted. Rabbah was challenged from our Mishnah which states that if customs collectors (tantamount to robbers) or bandits (tantamount to thieves) take someone’s item and give him another, it is his, because that owner despaired. Ulla can explain the Mishnah where his despair was known, but how can Rabbah explain יאוש being effective for both a גנב and a גזלן? The Gemara answers that the Mishnah’s bandit refers to an armed bandit, who is a גזלן. Later, Rebbe is quoted as saying that one despairs both by a גנב and a גזלן.
- Woman and minors are believed מסיחין לפי תומם for Rabbinical laws
In the Mishnah, Rebbe Yochanan ben Berokah taught that women and minors may testify about the source of a swarm of bees, thereby identifying the owner. The Gemara asks that they are not valid witnesses, and Shmuel explains that the case is where the purported owner was chasing the bees, ואשה וקטן מסיחין לפי תומם - and the woman or minor was talking casually and said, “The swarm emerged from here.” Rav Ashi said: אין מסיח לפי תומו כשר אלא לעדות אשה בלבד – Casual talk is only valid for testimony regarding a woman that her husband died, and she can remarry. Although it is also believed regarding a swarm of bees, that it because their ownership is only legitimate Rabbinically. Similarly, an incident where someone’s casual recollection of eating terumah as a קטן was relied upon to consider him a Kohen, was only for Rabbinic terumah. Finally, a child who casually recalled constantly watching his mother while they were captive and was relied upon to determine she was not violated, was because the Rabbis were lenient regarding captured women.
- המכיר כליו וספריו ביד אחר
The next Mishnah states: המכיר כליו וספריו ביד אחר – One who recognizes his utensils and books in another person’s possession, ויצא לו שם גניבה בעיר – and a report of burglary went out in the city, the purchaser returns the item, swears how much he paid for it, and takes that amount from the claimant. Without the reported burglary, he is not believed, because he may have sold it to another, who sold it to this person. The Gemara wonders why the report, which the supposed victim may have disseminated himself, is relied upon. It eventually explains that the case is where guests stayed in his house, and he got up in the night shouting that his possessions were stolen. Furthermore, there was a tunnel dug under his house, with the “guests” exiting with bundles of utensils on their shoulders, and everyone saying that the homeowner’s utensils and books, which were named and identified as having belonged to him, were stolen. Rava concluded that these details are only required for a homeowner who commonly sells his utensils.
