If a victim of theft discovers their stolen property in the possession of another who claims to have purchased it legally, the mishnah requires the latter to take an oath as to the price they paid for the item and allows the former to purchase it at that price. The original owner can thereby reclaim their stolen property and the one who unknowingly purchased a stolen item suffers no loss.
The rabbis conclude that the mishnah is talking about a situation in which the thief is unknown. If the thief is identified, there is a dispute as to how the matter is settled:
Rav says in the name of Rabbi Hiyya: The claim can be pursued only with the first (i.e the thief).
Rabbi Yohanan says in the name of Rabbi Yannai: The claim can also be pursued with the second (i.e. the purchaser).
Here’s one reading of the dispute: Seeking compensation from the thief, as Rav prescribes, makes sense, since the thief is the one who transgressed. Rabbi Yohanan agrees, but also allows the owner to reimburse the purchaser and reclaim their property, just as they are able to do if we do not know who the thief is. This also makes sense: Why should the identification of the thief prevent the owner from getting their item back if they are willing to pay for it?
But this is not the only way to read this dispute. Rav Pappa suggests an alternative:
Rav says in the name of Rabbi Hiyya that the purchaser’s claim can be pursued only with the first one (i.e., the thief) meaning that the law with regard to the purchaser is that (after returning the item to its owner) he can collect money only from the thief.
And Rabbi Yohanan says in the name of Rabbi Yannai that the claim of the purchaser can be pursued with the second one (i.e. the owner), meaning that the law with regard to the purchaser is that he can also collect the money from the owner (when he returns the item to him).
Our original read suggests the dispute is about which person the owner can approach to reclaim their property. But Rav Pappa’s read is that Rav and Rabbi Yohanan assume the owner has taken their property back from the purchaser (at no cost) and now the purchaser is trying to recoup that loss. Rav says the purchaser can go to the thief; Rabbi Yohanan says the original owner.
If this is indeed what the dispute is about, then, says the Gemara, it is really a question about whether or not the rabbis implemented “the takanah of the marketplace.” Rabbi Yohanan says they did, Rav claims they did not.
A takanah is a type of rabbinic decree that is issued for some corrective purpose. The takanah of the marketplace requires the original owner to reimburse the purchaser for what they spent on the stolen goods. By issuing this decree, the rabbis sought to alleviate consumer fears about unknowingly purchasing stolen goods and being forced to return them without compensation. The takanah of the marketplace offers protection to purchasers — if they have unwittingly purchased stolen goods and are forced to give them back, the takanah guarantees that they will get their money back. As a result, they will not hesitate to shop and the market can thrive. The takanah is good for business.
Rabbi Yohanan’s position is based upon the assumption that the takanah is in place — that is why he says that the purchaser turns to the owner for compensation. Rav is under the assumption that this takanah is not in place, so the purchaser’s only recourse is to turn to the thief who is ultimately responsible for their loss. This is the only reference to the takanah of the marketplace in the Talmud, so we can’t be sure if it was put into place or not. What we can be sure of is that just as the rabbis were concerned with ethics (compensating people for theft), they were also concerned with economics (keeping the market humming along). Pragmatically, they wrote laws to accommodate both needs.
Read all of Bava Kamma 115 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on February 25th, 2024. If you are interested in receiving the newsletter, sign up here.
