Bava Kamma 71

Destined for theft?

For the last few days we’ve been exploring a mishnah about situations in which a person is required by Torah law to pay four or fivefold restitution for an ox or sheep they stole and subsequently slaughtered or sold. On today’s daf, the rabbis discuss this particular case:

If one stole his father’s animal and then slaughtered or sold it, and afterward his father died … he pays the fourfold or fivefold payment.

It’s not terribly surprising that stealing from one’s parent is, according to Jewish law, nonetheless stealing. But things get more complicated in a case where the father subsequently dies, causing the thief to inherit what he stole. According to the mishnah, this does not exempt the thief from paying the full penalty for what was, at the time of the theft, a crime.

The Gemara is troubled by the lack of specificity in the mishnah’s wording. When exactly did the father die? When exactly did the thief stand trial? The precise timeline of events might make a difference to the ruling.

Rav Nahman said to Rava: With what are we dealing here? With a case where his father stood against his son the thief in his trial.

Rav Nahman suggests that the mishnah is specifically dealing with a case in which the thief was convicted of the crime and only after the case was concluded did the father die. The father’s death, then, does not exempt the son from the court’s ordained punishment.

But what if the thief’s father died before his son slaughtered or sold the animal? In this case, since the stolen animal in the son’s possession is now something he has also inherited, is it still a crime to slaughter or sell it?

Rava raises this question to Rav Nahman who answers in the affirmative: Even if the father died and only then the thief slaughtered or sold the animal, the thief is still liable for paying four or fivefold restitution to the father’s other heirs. It’s a strict, arguably punishing, interpretation of the mishnah.

Sometimes the rabbis have to sleep on their rulings. In this case, Rav Nahman woke the next morning with a change of heart and explained to Rava:

The reason that I did not say this to you last night is because I had not eaten ox meat. 

Commentators explain that Rav Nahman had been fasting the previous day and it had affected his judgment. After a full meal and adequate rest, Rav Nahman saw the case differently. He now agreed with Rava on the more lenient ruling: If the animal was slaughtered or sold after the father’s death, the thief would not be liable for the four or fivefold penalty. 

Hearing Rav Nahman opine on punishment for a thief calls to mind something we learned about him all the way back in Shabbat 156b:

Chaldeans (astrologers) told Rav Nahman bar Yitzhak’s mother: “Your son will be a thief.” 

She did not allow him to uncover his head. She said to her son: “Cover your head so that the fear of Heaven will be upon you, and pray for mercy.” He did not know why she said this to him.

One day he was sitting and studying beneath a palm tree (that did not belong to him), and the cloak fell off of his head. He lifted his eyes and saw the palm tree. He was overcome by impulse and he climbed up and detached a bunch of dates with his teeth.

This anecdote is part of a larger discussion about whether Jews are subject to the stars or, as the rabbis claim, ain mazal l’yisrael — there is no constellation that governs Israel. In this case, an astrologer reveals (correctly) that baby Nahman is by nature inclined toward theft. To guard against this, Nahman’s mother keeps his head covered as a constant reminder of heaven and the mitzvah not to steal. This turns out to be effective. (And in later years, covering one’s head as a reminder of heaven would become a more widespread Jewish practice.) The head covering saves Nahman from his nature, but when it slips off, he succumbs to stealing a mouthful of dates.

In Tractate Shabbat, this story demonstrates that adhering to mitzvot can change one’s fate for the better — even if that fate is written in the stars. But today I’m reminded that even if his mother’s care and his Jewish education shaped little Nahman into an honest rabbi rather than a derelict thief, he was always someone who struggled with the impulse to take what was not his. Perhaps this is the reason he initially tendered a strict ruling for the thief on today’s daf. And also the reason he ultimately recanted and offered a more lenient one in its stead.

Read all of Bava Kamma 71 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on January 12th, 2024. If you are interested in receiving the newsletter, sign up here.

Discover More

Kiddushin 42

Challenging an agent.

Kiddushin 19

Consent at any age.