Bava Kamma 109

Can the thief forgive himself?

At the bottom of yesterday’s daf, we encountered a mishnah that listed several highly specific cases in which a person takes a false oath that they do not have money belonging to another, including this one which is the subject of today’s daf:

One who robs his father and takes an oath (that he did not rob him) and then the father dies: This one pays the principal and the additional one-fifth payment to his father’s sons or brothers, and brings a guilt-offering.

An unfortunate father goes to his grave without hearing the truth from his thieving son or recovering the stolen goods. Now we have an interesting legal problem: The items the son stole would have been part of his inheritance, albeit shared with other heirs. Since he stole them, however, he must make restitution to the other heirs by repaying not only the principal but a one-fifth penalty, with a guilt-offering thrown in for good measure. Presumably, he forfeits his share.

The Gemara contemplates an even more complicated twist: What if there are no other heirs? If the thief is the only heir to his father’s estate, who can or even should he repay? Can he keep what he would have inherited anyway? The Gemara suggests this might be a possibility:

Let him forgive the debt to himself. Didn’t we learn in a mishnah (103a): If the owner forgave him concerning the principal, but did not forgive him concerning the additional one-fifth payment, he need not pursue him to repay the remaining debt.

A previous mishnah taught us that an owner can forgive a thief who stole property and swore falsely about it. If that owner can forgive, then surely this thief can forgive himself?

But no, says Rabbi Yohanan. That mishnah on Bava Kamma 103 is in accordance with the opinion of Rabbi Yosei HaGalili, while today’s mishnah is in accordance with the opinion of Rabbi Akiva, who does not think debt can be forgiven under these circumstances. To illustrate Rabbi Akiva’s position, the Gemara cites an even more far-fetched case in which someone steals from a convert and makes a false oath that he did not steal. Then the convert reportedly dies. Since the item can’t be given back to a dead man, the thief (now repentant) takes the retribution money and a guilt offering to Jerusalem, only to discover on the way that rumors of the convert’s demise have been greatly exaggerated. In a final turn of the screw, instead of demanding his money back, the convert essentially forgives the thief and then dies. 

In this situation, Rabbi Yosei HaGelili says the robber can keep everything he has because the theft was converted to a loan and, because under Jewish law a convert who has not married and produced children has no heirs, the loan is automatically forgiven. Rabbi Akiva takes a more stringent view, holding that the convert really had no power to forgive the theft in the first place. Likewise, says Rabbi Yohanan, Rabbi Akiva would not allow a thief who was the sole heir to his father’s estate to keep what he had stolen even after his father passed.

If you’re like me, you are probably a bit hung up on the ever-growing absurdity of these scenarios, the last of which requires someone to be misidentified as dead and for that same person to readily forgive the person who stole from them and lied to their face. But let’s refocus on something else: In the talmudic understanding, someone who converts to Judaism joins the family of the children of Israel and thereby forfeits their legal connection to their biological family. If they do not marry and produce Jewish offspring, they have no legal heirs.  

I don’t want to sugarcoat this painful idea, that the ties that bind a convert to their family of origin are accorded no status in the halakhic system. The Talmud says many things about converts and conversion, some of it warm and embracing, and some of it, like this teaching, considerably cooler — and, in my view, offensive. But as we wrestle with the idea that the Talmud views a convert as having lost legal ties to their biological family, let’s not lose sight of the fact that they gain a new family: the Jewish people. After all, converts are called to the Torah as the children of Abraham and Sarah, which puts them directly into the Jewish family tree. 

So here’s another take on today’s teaching: for this period in the life of an unmarried and childless convert, we might argue that they are uniquely positioned as equally akin to all Jews. For this interval, converts can lay claim to every Jew as family without preference, and every Jew should feel obligated toward them as, in a sense, their closest kin. After all, they have none closer. Perhaps that is something to celebrate too.

Read all of Bava Kamma 109 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on February 19th, 2024. If you are interested in receiving the newsletter, sign up here.

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