Responsible Theives

Bava Kama (6:1) | Yisrael Bankier | 12 years ago

The sixth perek deals with issues regarding culpability relating an ox that was guarded but nevertheless escaped and caused damaged. One case is if thieves removed the ox from the enclosure, they are responsible for any damage it caused. We shall investigate this specific case. 

The Gemara questions the novelty of the Mishnah’s ruling. Since the thieves pulled the animal out of its enclosure, they performed an act of acquisition (meshicha) and they are certainly responsible. The Gemara first answers that it is where the thieves did not handle the animal but stood around it leaving only one exit path thereby forcing it to leave. The Gemara’s second answer is that the case of the Mishnah is where the thieves hit the animal with a stick to make move. Rashi explains that the novelty in this answer therefore is that this act is equivalent to meshicha. 

The Rosh points out that meshicha alone is ineffective unless the owner intends to sell the item. Consequently in a case of theft we cannot say that a formal acquisition was performed. The Rosh therefore explains that since an act was performed that is significant in the area of acquisitions, it has the effect of making these thieves responsible for this animal.  

The Tosfot Yom Tov comments that this understanding of the Rosh seems to support the position of the Rambam. Both the Rambam (on the Mishnah) and the Bartenura appear to explain the Mishnah according the first understanding. That silent sheparding, without touching the animal, would make the thieves liable. A formal acquisition would at least require them to call the animals, but this requirement is omitted. The Tosfot Yom Tov explains that the Rambam understands that the liability of the thieves is therefore based on a knas (fine) since a formal acquisition is absent.  

There is another question that needs to be addressed. What was the intention of the thieves when they made this ox leave? Does it matter? 

The Baalei Tosfot cite the Yerushalmi that explains that these thieves intended to steal the ox. If however their intention was to remove or simply lose the animal then they would not be liable for the damage it caused. The reference to “thieves” in the Mishnah suggests that whoever freed the animal wanted it for them. The Rambam however does not make this distinction.

The Tosfot Yom Tov notes that this Yerushalmi presents a difficulty with our understanding above. If the liability is based on a fine alone, then what difference does the intention of the thieves make? The Tosfot Yom Tov suggests that since it would be a rare case where someone set the animals free for them simply to get lost, the knas was not instituted in that case

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