Talmudic pages

Bava Kamma 68

Despair.

The rabbinic laws around theft appear, on first blush, to be entirely objective. If you take something that isn’t yours, that’s wrong. The court assesses a fine for the theft based on what you stole. You return the stolen object and pay the fine. Case closed. 

But years ago, I heard a talk by Dr. Sarah Wolf, who argued that subjective emotional stakes are not just hidden but explicitly built into this highly rational system. The Talmud refers to these emotional stakes as ye’ush, which is usually translated as “despair.” If an object is lost or stolen, and the original owner gives up on the idea that it might ever return to them — if they despair of being reunited with it — then, according to the rabbis, they have also given up their claim on the object, and it stops belonging to them and enters the public domain, available for someone else to claim as their own. In other words, according to the rabbis of the Talmud, something only belongs to its original owner as long as that owner thinks it belongs to them.

The idea of ye’ush developed among the rabbis of the Gemara, the Amoraim. But it doesn’t appear in the Mishnah and the Tannaim, the early rabbis, don’t seem to use it in their own thinking. Yesterday’s daf concluded with a quote from Rabbi Akiva, a Tanna:

Rabbi Akiva said: For what reason did the Torah say that if a thief slaughtered or sold (a stolen ox or sheep), he pays the fourfold or fivefold payment? It is because he becomes more deeply entrenched in sin. 

While the Tannaim understand that not every object can realistically be returned, they don’t explicitly use the category of ye’ush (which had not yet entered rabbinic thought) to explore this idea. So Rabbi Akiva seems to be saying that the Torah imposes an extra punishment on a thief who not only stole an ox or a sheep but then slaughtered or sold it because in addition to the theft, the thief misappropriated the animal. He makes no mention of whether, at some point in this sequence of events, the owner has despaired of the animal and therefore it has become the property of the thief.

On today’s daf the Gemara explores Rabbi Akiva’s teaching in light of this newly developed legal category. If the original owner’s ye’ush has the capacity to literally transfer ownership of a stolen object from its owner to its thief, then to understand what Rabbi Akiva is saying, we have to determine if he’s referring to a time before or after ye’ush occurs. 

When? If we say before despair (ye’ush), is there entrenchment? Rather, after despair. And if it enters your mind that (the original owner’s) despair causes the thief to acquire the animal, why does he (the thief) pay the fourfold or fivefold payment? He slaughters his own animal or sells his own!

If ye’ush effects a transfer of ownership, and if the owner despairs of the animal after it is stolen but before it is slaughtered or sold, then why would the thief be punished for slaughtering or selling what is, by that time, their own animal? And if the original owner hasn’t yet despaired, and the animal still belongs to them, then the thief’s sale is ineffective (you can’t sell something you don’t own), so why is he punished for it?

The Talmud is going to offer a series of answers thinking through the implications of whether Rabbi Akiva is referring to a situation in which the animal is sold either before or after its owner despairs of being reunited with it. (Spoiler: The general thrust of the extended back and forth discussion suggests that he is referring to the period before the original owner’s despair.)

I want to highlight two things about the discussion as a whole. First, we see how the formalization of a new legal concept invites the later rabbis to explore their inherited teachings in this new light. Now that we as a society have an understanding of ye’ush, what does that mean for how we understand the teachings of Rabbi Akiva and the other giants of our tradition?

Second, as Dr. Wolf noted, this whole discussion is predicated on taking seriously that the original owner of the object has not only a legal claim but also feelings — and the legal claim and the feelings are profoundly interconnected. The rabbinic legal system does not try to strip away subjective emotions to reach for an objective standard, but actually takes these emotions into account in building its laws of theft. Both matter to the rabbis.

Read all of Bava Kamma 68 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 9th, 2024. If you are interested in receiving the newsletter, sign up here.

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