Bava Kamma - Daf 115
- תקנת השוק re: compensating a buyer of stolen goods
The Gemara says: גנב ומכר ואח"כ הוכר הגנב – If someone stole articles and sold them, and the thief was then discovered, Rav quoted Rebbe Chiya saying: הדין עם הראשון – the claim is only against the first one (the thief), and Rebbe Yochanan quoted Rebbe Yannai saying: הדין עם השני – the claim is even against the second one. After several interpretations of these two positions are given, Rav Pappa explains that everyone agrees the buyer must return the item to its owner (who had not despaired), and they argue if the Rabbis instituted a תקנת השוק – “remedy of the marketplace,” allowing the buyer to demand compensation from the owner when the thief has been identified. Rav holds the buyer, who must return the item, can only claim compensation from the thief, and there is no תקנת השוק here. Rebbe Yochanan holds a תקנת השוק was instituted here, and he can collect compensation from the owner. If one stole something and paid a debt or credit with it, the lender cannot request compensation from its owner, because the loan was not made with the intention of receiving this specific item.
- Spilling out one’s own wine to save someone else’s honey
The next Mishnah states that where someone’s barrel of honey cracked and began to leak, ושפך זה את יינו והציל את הדבש לתוכו – and this [other person] poured out his (less valuable) wine from his own barrel and saved the honey in the wine barrel, אין לו אלא שכרו – he only receives his fee for labor and usage of his barrel, but not compensation for his lost wine. But if he stipulated for his wine to be repaid before pouring it out, he can demand compensation. The same applies to one who saved his fellow’s donkey instead of his own when both were swept away by a river. The Gemara asks that the wine owner should say: מהפקירא קא זכינא – “I acquired the honey from a state of hefker,” because possessions which stand to be lost are ownerless, as the Gemara proves from a Baraisa (cited below). It answers: כשעקל בית הבד כרוך עליה – the Mishnah’s case is where the netting of the olive press was wrapped around [the barrel of honey], so the leak is slowed. It is therefore not considered hefker.
- Terumah and maaser from items which stand to be lost
A Baraisa was quoted which taught that if someone was carrying jugs of oil or wine, and saw they were breaking and the contents would be lost, he cannot declare them terumah and maaser on produce in his house; if he does, his declaration is ineffective, because the contents which stand to be lost are hefker, and not his. This contradicts another Baraisa: מי שבא בדרך ומעות בידו – If one was traveling on the road with coins in his possession, ואנס כנגדו – and he saw a robber coming towards him, he may not deconsecrate maaser sheni he has in his house on these coins (knowing they will be lost), ואם אמר דבריו קיימין – but if he did say this, his words are effective, which proves that coins which stand to be lost are still his!? The Gemara answers that this second Baraisa’s case is בשיכול להציל – where he is able to save his coins from the robber. He is not permitted to be mechalel his maaser sheni on them, because he can only save them על ידי הדחק – with difficulty, and they are likely to be lost.
