Gittin 55

Returning a stolen beam.

The mishnah at the top of our daf records testimony by Rabbi Yohanan ben Gudgeda about more rabbinic ordinances (we’ve seen many in this tractate!) enacted for the sake of tikkun olam — for bettering society. Many concern marriages and their dissolution but, in my opinion, the most interesting is one on a different topic:

Rabbi Yohanan ben Gudgeda further testified concerning a stolen beam that was already built into a large building, that the victim of the robbery receives only the value of the beam but not the beam itself, due to an ordinance instituted for the penitent (takkanat hashavin). 

What happens when a stolen object cannot be retrieved without tremendous cost and difficulty, which far exceeds the value of what was stolen? Suppose, as in this mishnah, I took a beam from you, then built it into my new house. To return it to you, as Torah law requires, I would have to tear down my house. I would likely refuse to repent and give back what I took — at least in part because the cost is so great.

This creates an untenable moral and societal situation, so the early sages circumvented the law of the Torah and instead required the one who took the beam to return its monetary value, in place of the beam itself. This ruling is called takkanat hashavin, an ordinance intended to encourage penitence. Allowing me to compensate you monetarily encourages me to do the right thing by compensating you for the robbery, even if you never get your beam back. 

A passage in the Tosefta (a compilation of early rabbinic traditions that parallels the Mishnah) describes the deliberations behind this ruling:

Concerning the case of one who stole a beam and built it into a large building: The School of Shammai rules that he must dismantle the building to retrieve the stolen beam. But the School of Hillel rules that the thief calculates the monetary value of the beam and compensates the owners. This is an ordinance for the sake of the penitent. (Tosefta Bava Kamma 10:5) 

The contemporary Mishnah commentary, Mishnat Eretz Yisrael, speculates that, while Hillel’s ruling, providing monetary compensation for the beam, became policy, Shammai’s approach, requiring the return of the beam itself, remained the legal ideal for the Babylonian Talmud. This is reflected in a talmudic story about the evil Ninevites who repented after the prophet Jonah predicted their downfall:

The verse states: And let them turn, everyone from his evil way, and from the violence that is in their hands. (Jonah 3:8)

What is the meaning of the phrase “and from the violence that is in their hands”? Shmuel said that the king of Nineveh proclaimed: “Even if one stole a beam and built it into his building, he must tear down the entire building and return the beam to its owner.” (Taanit 16a)

The implicit message is that even the incorrigible non-Jews of Nineveh punctiliously followed the Torah’s law to protect victims of crime as part of their program of collective repentance. How much more so should we Jews. 

These sources reflect the tension within halakhah between a legal and moral ideal and policy compromises necessitated by the bigger picture of reality and human frailty. Shammai argues for a strict reading of tradition intended to protect, at all costs, the victim of a crime. Hillel takes a different view that encourages social peace and responsibility while also compensating the victim, if imperfectly. Which approach to justice is the better one? When is the Hillelite approach enlightened and when is it simply justice delayed and denied?

Hillel’s approach wins the day, but Shammai’s approach continues to have a voice within the Talmud. What they have in common is that both care passionately about justice and about peace within their community, with an awareness that there is sometimes tension between the two.

Read all of Gittin 55 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on July 10th, 2023. If you are interested in receiving the newsletter, sign up here.

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