Bava Kamma Chapter Ten Mishnayoth Five and Six

 

Introduction

The two mishnayoth which we will learn today continue to deal with a person’s obligations to return his fellow’s property.  Mishnah five deals with a robber who stole a piece of land and then someone else came and took the land from the robber.  Mishnah six states that when a person returns something to his friend he must not return it to him in the wilderness, but rather should return it to him in an inhabited area.

 

Mishnah Five

1)                     If a man stole a field from his fellow and tyrants came and took it from him, if the whole district suffered, he may say to him, “Here, what is yours is in front of you.”

a)                                           But if it was on account of the robber [that the tyrants took the field], he must provide him with another field.

b)                                          If a flood swept away [the field], he may say to him, “Here, what is yours is in front of you.”

 

Explanation—Mishnah Five

In the scenario of our mishnah Reuven stole a field from Shimon and after he sold the field tyrants, probably Romans, came and took the field from him.  The mishnah provides two possibilities for adjudicating the case.  If the field was taken as part of a general conscription of land in the entire district, then Reuven can say to Shimon that he is giving him back his field, and Shimon can go and claim it from the Romans.  Even though Shimon will probably not be able to reclaim his field from the Romans, Reuven is not to blame nor is he obligated to give Shimon a different field.  The field would have been taken by the Romans even if Shimon had had possession of it.  On the other hand, if the Roman’s had taken the field on account of its being in Reuven’s possession, for instance if Reuven owed them a debt or they had some other problem with Reuven, Reuven must return a different field to Shimon.  In this case it is Reuven’s fault that the field was taken.  If it had been in Shimon’s possession the Romans would not have taken it.  Finally our mishnah teaches that if a river came and washed over the field while it was in Reuven’s possession, thereby making it part of the river and not fit for growing crops, Reuven does not need to give Shimon another field.  Since the river would have washed out the field no matter whose possession it was in, Reuven can say to Shimon, “Come take your field.”

 

Mishnah Six

1)                     If a man stole something from his friend in an inhabited region or borrowed it or received it as a deposit, he may not return it to him in the wilderness.

a)                                           But if he [had borrowed it or received it] with the understanding that he was going out to the wilderness, he may return it to him in the wilderness.

 

Explanation—Mishnah Six

Our mishnah teaches that if a person receives something from another person in an inhabited region, whether he stole it, borrowed it or received it as a deposit, he may not return it to him in the wilderness, by definition an uninhabited region.  Receiving something in the wilderness is probably undesirable for the owner, since he will have to shlepp the object all the way home.  Furthermore, there is a greater danger of bandits and wild animals in the wilderness, and therefore a person would prefer to have his object returned in an inhabited, protected area.  However, if it was known that the person receiving the loan or borrowing the object was going out to the wilderness, than he has a right to return it to the owner in the wilderness.

 

Questions for Further Thought:

·                      What would be the law, according to mishnah five, if the Romans came and took the field from Reuven the robber, but we didn’t know why they took the field?  In other words, they did not take from other people in the district, nor did Reuven owe them money?

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