Bava Kamma Chapter Ten Mishnah Two

 

Introduction

Mishnah one discussed the prohibition of taking money from a tax-collector, lest the money was stolen money.  Our mishnah deals with cases in which a person is allowed to retain ownership over items that come into his hand even though they may be stolen property or property which may belongs to others. 

 

Mishnah

1)                     If excise collectors took his donkey and gave him another donkey, or if bandits robbed a man of his coat and gave him another coat, they are his own, since the original owners gave up hope of recovering them.

2)                     If a man saved something from a flood or from marauding troops or from bandits:  if the owner gave up hope of recovering [the item], it belongs to him.

3)                     So too with a swarm of bees: if the owner gave up hope of recovering [the swarm], it belongs to him.

4)                     Rabbi Yochanan ben Baroka said:  “A woman or child may be believed if they say, ‘The swarm of bees went away from here.’”

5)                     A man may go into his fellow’s field to save his swarm and if he causes damage he must pay for the damage that he has caused; but he may not cut off a branch of the tree [to save his swarm] even on condition that he pay its value.

a)                                           Rabbi Yishmael, the son of Rabbi Yochanan ben Baroka, says:  “He may even cut off [the branch] and repay the value.”

 

Introduction

Sections one through three all give different examples that illustrate the same general principle.  If a person receives property that belongs to someone else in a legal fashion and the original owner gave up hope of ever recovering the property, he may retain ownership.  The idea is that by giving up hope of ever recovering the object the original owner actually renounces his ownership, thereby allowing the new owner to claim title.  In the first example the person was given a donkey by a tax collector or a coat by bandits.  Although the item surely belonged to someone else, we can safely assume that the person gave up hope of ever recovering the donkey or coat.  Therefore the new owner can claim title to the item.

Section two teaches a more general example of a person who rescues an item from a river, from marauding troops or from bandits. Again, we can safely assume that the original owner gave up hope of ever recovering the object and therefore the finder can claim title.  The same is true for the runaway swarm of bees mentioned in section three.  One can assume that when a person’s swarm of bees runs away, he will give up hope of recovering it.  It will therefore belong to anyone who finds it.  We will deal more extensively with establishing ownership over lost items in the beginning of the next tractate, Bava Metzia.

Sections four and five are connected to section three by the issue of finding a swarm of bees.  Generally speaking women and children are not qualified to testify.  According to Rabbi Yochanan ben Baroka they are however qualified to say that a swarm of bees originated from so-and-so’s property.  In this case if a person found the swarm he would have to return it to the owner specified by the woman or child.

Section five grants permission to a person to trespass another’s property in order to chase after his swarm.  According to the anonymous opinion in section 5 one may enter another’s property but he may not break off a branch in order to lead back the swarm.  Rabbi Yochanan ben Baroka, whose opinion is found in section 5a, allows a person to even break off a branch to save his bees.  Later he will make restitution for the broken branch.

 

Questions for Further Thought:

·                      Why do we need all of the examples mentioned in sections one through three?

·                      What is the law if a person stole money from another person and then the original owner gave up hope of ever recovering the stolen item? 

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