Bava Metzia 37

On the double.

It’s hard admitting to yourself and others that you did something wrong and doing the work to correct the harm you caused. In the case of theft, the mishnah on today’s daf identifies another potential difficulty: What if you are trying to make amends but can’t remember exactly who you stole from? 

In the mishnah’s case, a man admits that he stole 100 dinars from one of two people, but he doesn’t know who. In that case, who does he repay?

He gives 100 dinars to this and 100 dinars to that because he admitted at his own (initiative).

In order to make amends, the reformed thief needs to repay bothpossible victims because he has acknowledged both the theft and his inability to remember who he stole from. From this statement, the Gemara concludes: 

Apparently, in cases of uncertainty, we expropriate property. And we do not say: Establish the money in the possession of its owner. 

If the (reformed, but apparently forgetful) thief admits his theft, the court doesn’t require each possible victim prove they were the original owner. Instead, the court expropriates double the amount stolen and gives the amount of the theft to each possible victim. 

The Gemara then cites another mishnah that seems to contradict this one. A mishnah on Yevamot 118b reads: 

One who robbed another of five and he does not know which of them. This one says: “He robbed me,” and that one says: “He robbed me.” He places the stolen item between them and withdraws. — This is the statement of Rabbi Tarfon.

Rabbi Tarfon imagines a scenario in which a robber, unable to remember which of five claimants he actually stole from, places the stolen item equidistant from each and (in my head, at least) slowly backs away to allow a vicious fight over who gets it. Or more realistically, it becomes the responsibility of the court to assess each person’s evidence that they are the rightful owner.

How does this mishnah square with what we’ve learned on today’s daf? After all, the mishnah in Yevamot seems to suggest that it’s the original owner’s responsibility to take possession of the returned item, but the mishnah on our daf states that it’s the thief’s responsibility to make sure that the stolen object is returned to its rightful owner.

The Gemara points to a fundamental difference in the motivations of the thief and the possible victims in each case:

There, where they demand from him. Here, where he comes to fulfill his obligation to Heaven. This is also precise, as it teaches: Because he admitted at his own (initiative). 

If the possible victims are the ones demanding restitution, then the burden of proof falls on them. But if the returning of the stolen object is initiated by the thief who admits he has done wrong and wants to fulfill what he knows God demands of him, then he returns the full amount to each possible victim — no cage match necessary. 

This ruling seems somewhat unfair to the former thief, who is penalized for admitting to his theft and trying to fix it by being required to pay back the stolen goods twice-over. Yet it does offer a clear path to making amends: a set of actions, a guarantee that the actual victim of theft has been repaid, and an expectation that this double-payment resolves the issue. Who wouldn’t pay extra for a chance to wipe their slate completely clean?

Read all of Bava Metzia 37 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on April 5th, 2024. If you are interested in receiving the newsletter, sign up here.

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