Bava Kamma 112

Generational justice.

Yesterday, we learned from a mishnah that when stolen property gets passed down from one generation to the next, the obligation to return it does not. This rule has an upside: it allows those whose parents had a dubious past to make use of their inheritance without having to be concerned about whether or not it really belongs to them. But by doing so, it is subject to challenge as it grants permission for people to use property that they know, or suspect, to be stolen.

A beraita on today’s page offers an alternative:

In a case where a thief left stolen items as an inheritance, if the heirs are adults they are obligated to pay, and if they are minors they are exempt from paying. If the adult heirs said: “We do not know what accounting our father made with you,” they are exempt.

The beraita requires the heirs to make restitution for stolen goods they inherit, with two exceptions. The first is for minors, a decision that prioritizes our obligation to support orphans over our obligation to return stolen objects. The second is for adults who testify that they are aware that the goods were stolen but do not know the details of the repayment plan or if it had been executed. Because it is possible that payment has already been made, the heirs are exempt from making it themselves.

The Gemara expresses surprise about the second exemption. If the heirs have stolen property in their possession, it does not seem that their uncertainty about what arrangements their deceased parent made is enough to override the obligation to return it. Rava responds to this objection by reformulating the beraita:

In the case of adult heirs who said to the claimant: “We know the accounting our father made with you and there is nothing of yours left with him, as he paid his debt to you,” they are exempt.

When the heirs are sure that the debt was paid, says Rava, they are exempt from paying it. Otherwise, they are obligated to make compensation for the crimes of their parent.

This beraita is one of several sources quoted by the Gemara that seeks to limit the scope of the mishnah and require heirs to return stolen objects that they inherit. Each in its own way argues for restorative justice. If an item has been stolen it should be returned, even into the next generation. 

As a contemporary reader of these texts, their argument resonates. If we can correct the wrongs committed by our ancestors, shouldn’t we? In bringing a number of rabbinic statements that attempt to limit the scope of the mishnah, it seems that this argument resonates for the Gemara as well. But, despite its efforts, this argument does not win out.

Why? Biblical precedent does not stand on its side. Leviticus 5:23 states that, “the one who has sinned … shall restore the item that they robbed,” clearly attaching the requirement to return stolen goods to the thief and not the objects themselves. In other words, the objects themselves do not take on the status of stolen goods that need to be returned, and so, once the thief dies, the obligation to return them expires. 

While the Torah, and ultimately the rabbis, do not require the heirs to return the stolen property, they also do not forbid it. If the heirs are so moved, either by their sense of ethics or their affinity for the alternate opinions preserved in the Talmud, they can go beyond the requirements of the law and gift the items back to their original owner. 

Read all of Bava Kamma 112 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on February 22nd, 2024. If you are interested in receiving the newsletter, sign up here.

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