- One who is uncertain if he returned a robbery, etc., vs. one who is uncertain if he stole
The Mishnah states that one who tells his fellow that he stole, borrowed money, or received a פקדון from him, and says: ואיני יודע אם החזרתי לך אם לא החזרתי לך – “But I do not know if I returned it to you or not,” he is liable. But if he said: איני יודע אם גזלתיך – “I do not know if I stole from you,” etc., he is exempt from paying. The Gemara discusses one who claims to be owed a maneh from his fellow, who responds that he does not know. Rav Huna and Rav Yehudah say he must pay: ברי ושמא ברי עדיף – where the claimant is certain and the defendant is uncertain, the claimant who is certain is stronger. Rav Nachman and Rebbe Yochanan say he is exempt: אוקי ממונא בחזקת מריה – Keep the money in its current owner’s possession until proof is brought. The Gemara argues that the Mishnah’s claimant is demanding payment with certainty; otherwise, the defendant would not pay in the first case. Yet, in the second case (where the original obligation is unknown), he is still exempt!? It answers that the Mishnah’s claimant is uncertain. The payment in the first case is בבא לצאת ידי שמים – regarding one who comes to fulfill his Heavenly obligation.
- Returning stolen sheep without notifying the owner, and if he counted them
The next Mishnah teaches that if one stole a sheep from someone’s flock and returned it without notifying the owner, he remains responsible if it dies or is stolen (it remains in his domain until its proper return). If the owner was unaware of the theft and its return, and counted the flock and found it complete, the thief is exempt from future damages. Four opinions are presented regarding returning stolen sheep, which impact the interpretation of the Mishnah. (1) Rav says if the owner was aware of the theft, the thief must inform him it was returned. If he was unaware of the theft, counting his flock is sufficient. (2) Shmuel says whether the owner knew of the theft or not, counting his flock exempts the thief. (3) Rebbe Yochanan says counting exempts the thief where the owner was aware of the theft, but if he was unaware, even counting is unnecessary. (4) Rav Chisda says: לדעת מנין פוטר – If the theft was with the owner’s knowledge, counting his flock exempts the thief. שלא לדעת צריך דעת – If it was without his knowledge, then its return requires his awareness (i.e., he must be informed). Rava explains that the owner must know that his sheep was stolen, הואיל ואנקטה נגרי ברייתא – because he got it used to outside steps, and it is likely to wander away again.
- Purchasing items from those suspected of stealing from their owners
The next Mishnah states: אין לוקחין מן הרועים צמר וחלב וגדיים – One may not purchase wool, milk, or kids from hired shepherds, who are suspected of stealing them from their owners, ולא משומרי פירות עצים ופירות – nor wood or fruit from watchmen of fruit orchards. The Mishnah details materials that may be purchased from women (without suspicion they were taken from their husbands without permission) and adds: וכולן שאמרו להטמין אסור – but any [women] who told the purchaser to conceal his purchase, it is prohibited to purchase it, because it appears the item was stolen. A Baraisa goes into greater detail of the laws of purchasing from shepherds and concludes with a general rule: כל שהרועה מוכר ובעל הבית מרגיש בו לוקחין מהן – anything that if the shepherd would sell it, the owner would sense its absence, one may purchase from them, since they are afraid to be caught. The Gemara proceeds to analyze the various numbers given in the Baraisa for permitted purchases.
