Halachic and Ethical Topics in Tractate Bava Kamma by the Students of the ICJA 12th Grade Accelerated Honors Talmud Class 5774-5775 2014-2015 Edited by Rabbi Barry Robinson Volume II 1 2 Table of Contents Foreword ............................................................................................................................. 4 Section I - Does a Thief Need Atonement in Addition to Returning the Stolen Property? Is There Honor Among Thieves? by Noah Aberman, Dovi Garfinkel, and Rafi Jacobson ......................... 6 Kapara after Stealing: What is its True Purpose? by Noah Best and Ben Schreiber ............................................................. 9 Is Kapara Necessary for Thieves? by Natan Oliff and Max Brasch ............................................................... 11 To Do or Not to Do (Teshuva), That is the Question by Ari Karesh and, Jacob Zwelling ......................................................... 13 Section II - Miscellaneous Topics in Bava Kamma Returning Stolen Chametz After Pesach is Over by Natan Oliff and Max Brasch ............................................................... 16 How and Why a Thief Acquires Stolen Property by Dovi Garfinkel, Noah Aberman, and Rafi Jacobson ........................ 18 Responsibility to Pay for Damage Done as a Child by Mordechai Lis and Ben Eisenstein ..................................................... 21 Is Dina D’Garmi a Torah Law or a Rabbinic Enactment? by Ari Karesh and Jacob Zwelling .......................................................... 23 Why Must a Shochet Prove He is an Expert? by Dovi Garfinkle, Rafi Jacobson and Noah Aberman ......................... 25 Going Beyond the Letter of the Law by Jacob Zwelling and Ari Karesh .......................................................... 27 One Cannot Render Someone Else’s Property Forbidden for Use by Ben Schreiber and Noah Best ............................................................. 30 Dina D’Malchuta Dina - Not Just For Jews Anymore by Ben Eisenstein and Mordechai Lis ..................................................... 33 Geneivat Da’at - Deceiving Another Human Being by Ben Schreiber and Noah Best ............................................................. 35 Gezel Aino Yehudi - Stealing from a Gentile by Max Brasch and Natan Oliff ............................................................... 37 3 Foreword This academic year, 5774-5775 (2014-2015), the students of the 12th Grade Accelerated Honors Talmud Class learned various Sugyot in the ninth and tenth chapters of Masechet Bava Kamma dealing with the laws of Geneiva and Gezeila (theft and robbery) as well as several other laws of Jewish Jurisprudence. On the topic of stealing, the Torah prohibitions are quite clear: ('`i:'hi `xwie) :Fzin¦ £rA© Wi`¦ ExT§ W© z§ Î`Ÿle§ EWg£k©z§ Î`Ÿle§ EaŸpb§Y¦ `Ÿl You shall not steal; nor shall you deal falsely or lie to one another. (Vayikra 19:11) ('bi:'hi `xwie) :xw¤ŸAÎcr© LY§ `¦ xik¦Ÿy¨ z©NrªR§ oil¦ z¨Î`Ÿl lŸfb§z¦ `Ÿle§ L£rx¥Îz`¤ wŸW£rz©Î`Ÿl You shalt not oppress your neighbor, nor rob him; you shall not withhold the wages of a hired servant all night until the morning. (Vayikra 19:13) With regard to stealing, the Torah calls for restitution: ('bk:'d `xwie) ... lf¨B¨ xW¤ `£ d¨lf¥B§d©Îz`¤ aiW¦ d¥e§ ... ... he shall restore that which he took by robbery ... (Vayikra 5:23) In Section I of this compendium, the Talmidim deal with the issue of whether or not restitution is sufficient to erase the sin of stealing. As we shall see, the issue is subject to considerable debate among the Rabbis. In Section II, the papers cover a wide spectrum of topics from the ninth and tenth chapters of Bava Kamma. We hope you enjoy reading the papers in this compendium as much as we enjoyed learning about these issues and putting this compendium together. Rabbi Barry Robinson Iyar 5775 - May 2015 4 Section I Does a Thief Need Atonement in Addition to Returning the Stolen Property? 5 Is There Honor Among Thieves? by Noah Aberman, Dovi Garfinkel, and Rafi Jacobson There are many sources that argue whether or not a Gazlan (robber) or Ganav (thief) need to do Teshuva (repentance) and Capara (atonement) for having committed a sin - even after returning the stolen object. This discussion is heavily debated and there are many sources that defend both sides of the argument. While there is not one definite answer to the question of whether or not a Gazlan or Ganav need to do Teshuva after returning the object they stole, we will attempt to explain both side of the argument and perhaps shed light on the deeper questions involved. The Mishna in Masechet Chagiga (Daf 9a) says: `le lbxd xar .bg ly oexg`d aeh meie ,lbxd lk z` bbeg - bg ly oey`xd aeh meia bg `ly in .zepndl lkei `l oexqge owzl lkei `l zeern ('` zldw) xn`p df lr ,ezeixg`a aiig epi` - bg `ed leki - lfebe apeba xn`z m` owzdl leki epi`y zeern edfi` :xne` `iiqpn oa oerny iax ...owzie exifgdl If one did not bring the Chagiga sacrifice to the Temple on the first day of Sukkot, he may do so on any of the subsequent days of the holiday including Shemini Atzeret. However, once the holiday has passed, it is too late to bring the sacrifice. About such a person it says in the Book of Kohelet (1:15): “That which is crooked cannot be made straight; and that which is missing cannot be counted. Rabbi Shimon ben Menassiya asks: “What is this crooked thing that cannot be made straight? ... It cannot refer to a thief because all he has to do is return the stolen object and he has “corrected” his sin ... We see that in the case of a thief, he is able to return the object which he stole or at least make a payment equal to the value of the object. Rashi (xifgdl leki d"c) says that by returning the stolen object, the thief has “corrected” the sin. It would seem that Rashi is of the opinion that the thief does not need to do Teshuva because he is able to merely return the stolen object and thereby correct the sin. Another source is from the Mishna in Masechet Sanhedrin (24b) that says that a gambler and one who lends money at interest are not able to be witnesses in court because they are untrustworthy. Rashi (wgynd d"c) adds that these people are not allowed to be witnesses because they are considered to be thieves. The Rambam (c"d 'i wxt zecr zekld) tells us that Gazlan is disqualified from testifying because he is a Rasha (an evil-doer) and he remains so even after returning the stolen property. 6 The Kesef Mishna on the Rambam stresses that merely paying back the money is not considered a good, sincere Teshuva. Later, the Rambam (c"d 'ai wxt zecr zekld) reiterates that repayment is not sufficient. The Gazlan must do Teshuva in order to be reinstated and allowed to testify in court. However, the Radvaz has a different approach. The Radvaz says that if the Beit Din forces the Gazlan to repay, then Teshuva is still required. But if the Gazlan returns the stolen object of his own free will, then even the Rambam would hold that it is considered a legitimate Teshuva. The Rambam adds that a Rasha who receives Malkot (lashes) for his sin can be considered to have done Teshuva. However, since there are no lashes for a Gazlan, he must do Teshuva before he can be considered a viable witness again. To this the Radvaz says that even if a Gazlan received lashes, we would not have a proof that he had done Teshuva sincerely. The reason is that a Gazlan is considered a Rasha in the heavenly court as well as in the human court, so he must do an actual, full-hearted Teshuva. The Gamara in Bava Kamma (60b) tells a story that King David once was very thirsty and he asked for water from the well of Beit Lechem, which was in the city gate. In response, three men broke into the camp of the Plishteem (Philistines) and brought David the water. The Gemara assumes that the story is allegorical and that King David was actually asking for a Halachic ruling - he was not asking for water to slake his thirst. So the Gemara asks: what was the Halachic issues raised by King David. The Rabanan said in the name of Rabbah Bar Mari that the issue was as follows. King David and his army were encamped at a field which contained stacks of barley belonging to Jews and stacks of lentils belonging to Philistines. King David asked the Sanhedrin if he was permitted to take the barley to use for food for his horses on the condition that he pay back the owners with the stacks of lentils when he takes them from the Philistines. The Sanhedrin replied to King David that even if one repays what he stole he is still considered a Rasha. Accordingly, said the Sanhedrin, a commoner would not be allowed to do this but since David was the king he was allowed to because the king is allowed to “break through the fences of another person’s property to make a path for his army.” It is evident from this Gemara that the Sanhedrin holds that a thief would have to do Teshuva in addition to returning the stolen property. Our final source is based on the lectures and writings of Rabbi Yitzchok Basser (Rosh Chabura of the Bais HaVaad Halacha Center, Lakewood, NJ). Rav Basser was asked: if one shoplifted in his teenage years from a store owned by a family friend and decides now that he wants to make 7 amends with the friend, can he anonymously return the value of the stolen item, or does he also need to ask for Mechila? The first proof that Rabbi Basser brings is from the Rambam (h"d 'd wxt wifne laeg zekld) who says if one causes bodily harm to another person, he must ask for forgiveness but if one only causes monetary damage, he only has to pay the person back (and does not have to ask for Mechila).