Bava Kamma Chapter Ten Mishnayoth Seven and Eight
Mishnah Seven deals with a person who either stole, borrowed or received a deposit from another person and does not know whether he has paid him back.
Mishnah Eight deals with a person who stole from another and returned the object without telling the original owner that it was returned.
1) If a man said to his fellow, I robbed you, [or], You lent me [something], [or] You deposited [something] with me, but I do not know whether I returned it or not he is obligated to repay.
2) But if he said, I do not know whether I robbed you, [or], whether you lent me [something], or whether you deposited [something] with me, he is exempt from repaying.
In section one of our mishnah the speaker is certain that he at one point had something that belonged to his fellow, either by stealing, borrowing or receiving the object as a deposit, but he is uncertain whether he returned the object. Since the last verifiable status of the object is with the robber, borrower or one who received a deposit, and it is doubtful whether he returned it, he is obligated to repay the value of the object to the original owner. In section two, the speaker is uncertain whether he ever had possession of the object. In this case the last verifiable status of the object is with the original owner. Therefore, the speaker does not have to repay. In other words, in both cases we assume that the object is still where it was last verifiably ascertained to be and we adjudicate accordingly.
1) If a man stole a lamb from the flock and restored it, but it died or was stolen again, he is responsible for it.
2) If the owner knew neither of its theft nor of its return and counted the flock and found it complete, the thief is exempt.
In section one of our mishnah a person stole a lamb from a flock and the owner noticed that it was missing. If he were to return the lamb without telling the owner that he had done so, the thief is still responsible for the lamb. Since he has not told the owner that the lamb has been returned the owner does not know that he has to keep an eye out for the lamb.
In section two, the owner did not even know that the lamb was stolen. When he counted the flock all of the animals were there, and therefore we can assume that he knew that he was responsible for them all. If the previously stolen lamb should subsequently die or be stolen, it will be the owners responsibility and not the thiefs.
Questions for Further Thought:
· Mishnah Seven: Might you have thought that there would be a legal difference between a person who admits to robbing another person versus a person who admits that he received a deposit? Why doesnt the mishnah make a difference between these two scenarios?
· Mishnah Eight: What would be the law if in the scenario mentioned in section two the owner had not counted the flock? Would the thief still be exempt?