Talmudic pages

Bava Kamma 108

Vigilante justice.

When an animal temporarily left with a guardian dies due to negligence, the guardian should compensate the owner for the loss. But when an animal left with a guardian is stolen due to circumstances beyond that person’s control, the guardian is not held accountable for the loss. So what happens in the highly unlikely event that both of these things occur? That is what Rabba Zuti asks on today’s daf:

If an animal given as a deposit was stolen in circumstances beyond the control of the guardian, and the thief returned the animal to the place from where he had stolen it, and it is now in the house of the guardian, and it then died through negligence, what is the halakhah

The Gemara suggests two possible outcomes. One option is to say that once the animal is stolen, the guardian’s responsibility for the animal ends and does not restart when the thief returns the animal. In such a case, the guardian is exempt. Alternatively, if the return of the animal reactivates the guardianship, they would then be held accountable for its negligent death.

The Gemara leaves the matter unresolved. Rabbinic tradition teaches that, sometime in the mythic future, when Elijah the Prophet comes to announce the arrival of the messiah, he will resolve this and all of the other unfinished cases in the Talmud. May it come speedily in our day!

In the meantime, while we wait for the answer, it would be nice to know how to act. While most of the legal codes do not address this case at all, Maimonides, in the Mishneh Torah, provides some guidance. He rules that since the matter is unresolved in the Talmud, the guardian is not required to make payment. Why? Not because they are not legally responsible for the death of the animal, but rather because we do not have legal standing to force them to pay. In other words, our uncertainty about the law protects the guardian, whether they are responsible or not.

But our uncertainty works both ways, as Maimonides points out: “If the owner seizes the animal’s worth, it is not expropriated from his possession.” In other words, if the angered owner of the dead animal takes matters into their own hands and seizes an equivalent amount of money or property from the guardian, the courts also do not have the legal standing to force them to pay it back. While we might not approve of the way in which the owner forcibly took payment, it may very well be that they were only taking what was theirs — so we let matters lie. 

Maimonides’ ruling gives some practical advice for an authority about how to handle this difficult situation. Given what we read in the Gemara, it makes a certain sense. But it does little to advise civil authorities as to how to calm challenging feelings that might arise if and when the parties choose to settle the matter with their own hands (and the fisticuff that might follow). At least we can be comforted knowing that it is very unlikely this circumstance will come about too often while we wait for Elijah to present us with a clearer solution.

Read all of Bava Kamma 108 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on February 18th, 2024. If you are interested in receiving the newsletter, sign up here.

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