As we’ll learn in a few months when we get to Tractate Bava Metzia, the rabbis hold that the biblical requirement to return a lost object does not apply when the owner abandons any hope of getting their item back. In such a case, finders keepers is the rule.
On today’s daf, we learn that Rabba believes this rule applies to stolen property as well. Because the owner of a stolen object despairs of getting it back, the thief legally acquires the stolen item. This does not mean that the thief is off the hook for their transgression, only that they are not obligated to return the specific item that they stole. Instead, they make restitution by paying the owner a sum of money equal to the value of the stolen object. The only question is: Is this rule biblical or rabbinic in origin?
If it’s biblical, then biblical laws that render lost items ownerless when their owner abandons hope of getting them back should apply to stolen items as well. But maybe lost items are not like stolen items.
It is only a lost item (that the owner’s despair enables the finder to acquire the item, because the item) came into his possession in a permitted manner. But in this case of the thief, since the item came into his possession in a prohibited manner, it’s only by rabbinic law.
There is nothing untoward about finding a lost object, so if the owner has given up possession of it, there is no reason the finder shouldn’t be allowed to keep it. But the case of a thief is different, since the thief broke the law to acquire the object. As such, the rule for a case that involves a prohibited means of acquisition should not be derived from the rule for a permitted one. The thief is only permitted to keep the stolen object because the rabbis declared that he could. And why would they do that?
Due to an ordinance instituted for the penitent.
Leviticus 5:23 requires a thief to “restore the item that they robbed.” And the rabbis explain that, in order to do so, the item has to be in the same condition as when it was stolen. But if the original object is no longer in the thief’s possession or is no longer in the same condition that it was when it was stolen, the thief is unable to return it as part of their repentance. By transferring ownership of the object to the thief, the rabbis remove this stumbling block making it possible for the thief to pay for what they stole in place of returning it.
The Gemara does not ultimately determine whether this rule is biblical or rabbinic when it comes to stolen property, although it does give airtime to Rav Yosef, who disagrees with Rabba and says that the thief never takes possession of the stolen object. Either way, the transfer of ownership does not happen on its own. Rather, it is triggered by the abandonment of ownership by the original owner caused by loss of hope that they will ever get it back. This is of note because, most of the time, the rabbis require an act of acquisition for the transfer of property from one person to another. Here, however, it is a person’s thoughts and feelings that enact a legal transfer of property from one person’s possession to another’s.
So mind your thoughts if you have lost track of something — a moment of despair might impact your ability to recover it in the future.
Read all of Bava Kamma 66 on Sefaria.