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    Mishnah Bava Kama 10:2

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    Arik
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    Mishnah Bava Kama 10:2

    Post  Arik on Mon Sep 20, 2010 10:08 am


    Mishnah Bava Kama 10:2





    A) If a customs officer seized one’s donkey and gave him another (in place of it), or if robbers stole one’s clothing and gave one other clothing (in place of it), These (the replacements) are one’s legal property, since their original owners have given up hope of recovering them.

    B) If one saves property from a flood or from an invading army or from robbers, one is the legal owner of that property if the original owner has given up hope of recovering them.

    C) The same is the case with a swarm of bees. If the owner (of the beehive from which the swarm emerged) has given up hope of recovering them, they are the legal property of the one who does recover them.
    R. Yochanan b. Beroka said: A woman or a child may testify that “this swarm of bees came from such-and-such a hive.”

    D) The (original) owner of the bees may trespass upon his neighbor’s field in order to recover his bees. When he does so, he is liable for any damage he causes to his neighbor’s property. However, he is not entitled to cut off a branch of his neighbor’s tree, even with the stipulation that he will compensate his neighbor for that damage.
    R. Yishmael the son of R. Yochanan b. Beroka said: The owner is entitled to cut off the branch and compensate his neighbor.

    Commentary

    When we speak of something called “the law,” we often have in mind “the letter of the law,” a strict and literal reading of the rule that sets a minimal, bottom-line standard that everyone must or is entitled to follow. We tend to contrast this reading with a “higher standard” - let’s call it “the spirit of the law,” or “going beyond the letter of the law” - that imposes a more stringent obligation upon us. Question: are we ever required to act according to this higher, more exacting ethical standard, or is that decision left to our discretion? Our mishnah gives us some resources with which to consider that question.

    The legal concept that unites the different clauses of our text is (ye’ush), literally, “despair,” as in “Oy, I’ve lost a $20 bill, and I’m never going to get it back!” As is the case with some other legal systems, Jewish law provides that, under certain circumstances, objects that are lost or stolen become the legal property of the one who finds or recovers them, provided that the original owner of that property has despaired (“given up hope”) of getting it back. There are good reasons for such a rule. For example, there are times when it is either impossible to identify the legal owner of a lost or stolen object. The law wishes to assign property to an identifiable owner; otherwise, people will end up fighting over it. It therefore allows the finder to assume legal ownership, on the grounds that the legal bond that connects the original owner to the property is severed when that owner “gives up hope” of recovering it.

    So far, so good... except that there are times when we do know the owner’s identity, even if he or she has despaired of recovering the property. In clause A) of our mishnah, we may well know the identity of the original owners of the property that one receives from the robbers or customs officers in “exchange” for our own. (In those days, customs officials worked according to their own arbitrary decisions, and the property they seized was considered to be stolen). Still, because we may presume that the original owners have given up hope of recovering the property, it legally belongs to the one who receives it from the robbers or the customs officers. (Besides, it’s just possible that the property we have received from these no-goodniks was not stolen.) The Talmud and the subsequent codifiers of Jewish law, however, conclude that if one wishes to be a truly ethical person, one ought to return the property to its original owner. That’s great - except that if I do that, then I’m the one who has lost a donkey or an item of clothing! Why should I be the loser, instead of that other guy (the original owner)?? Good question, which is probably why the halakhah leaves the decision in my hands. It does not obligate me to rise to the higher standard at my own expense, but it encourages me to do so, to emulate the standard of behavior - “beyond the letter of the law” - expected of the truly ethical person.

    In clause B), the one who saves property from certain loss is the legal owner if and only if one knows that the owner has truly “despaired” of recovering it.

    Clauses C) and D) discuss the rules concerning a particularly recalcitrant species of property. Bees, after all, are difficult to identify (maybe they should be fingerprinted?) and to control (the little buggers have absolutely no respect for property boundaries!). The halachah therefore relaxes the rules of ye’ush in this case. The testimony of women and children, normally not accepted under traditional Jewish law, is accepted here in order to establish that these bees belong to the owner of a particular hive; without that testimony, there might be no way to identify the bees, and the owner would “give up hope” of recovery). The owner, moreover, is permitted to enter his neighbor’s property in order to recover his bees - otherwise, how could he ever protect his ownership rights to the? - so long as he pays for whatever damage he causes. The dispute is over the extent of this right to tresspass: does it allow the owner to cut off the tree-branch on which his bees have gathered, even on condition that he compensate the owner of the tree? The anonymous opinion in the mishnah says “no.” Rabbi Yishmael b. Yochanan b. Beroka says “yes.” This rule remains in dispute among the codifiers.

    How would you resolve that dispute? Should the owner of the tree be obligated in this case to rise to a “higher standard” and allow his neighbor to cut off the branch if necessary?


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