QUESTION: The Gemara asks, "When is one permitted to buy from a thief?" Rav answers that one is permitted to buy from a thief only when most of his property belongs to him. RASHI (DH Rov) explains that since the majority of his merchandise is not stolen, one may assume that the object that he is buying is from the majority and he may derive benefit from that object. Shmuel disagrees and asserts that even when only a minority of his property actually belongs to him, one is permitted to buy from him. Rashi (DH Afilu) explains that one may assume that anything he buys from the thief is from the minority of his merchandise which legally belongs to him. The Gemara relates that Rav Yehudah ruled that one may rely on Shmuel's opinion.

The RAMBAM in Hilchos Gezeilah v'Aveidah (5:8) and the SHULCHAN ARUCH (CM 369:3) write, "One is forbidden to derive benefit from a Gazlan. However, if a minority of his property belongs to him, even though the majority of his property is stolen, one is allowed to derive benefit from him unless he knows for certain that the object he is buying is stolen." They clearly follow the ruling of Shmuel.

However, elsewhere they seem to rule otherwise. The Rambam in Hilchos Geneivah (6:1) and the Shulchan Aruch (CM 358:1) write, "Anything for which there is a Chazakah (assumption) that it is stolen (Geneivah) is forbidden to buy. Similarly if the majority of objects of this type (in the hands of the seller) is stolen, one may not buy it. Therefore, one may not buy wool, milk, or goats from shepherds...." The source for this ruling is the Mishnah earlier (118b), which implies that when a majority of the merchandise of a seller is stolen, one may not buy any of it from him. The Mishnah seems to contradict the ruling of Shmuel, who rules that one may buy from the seller even when a majority of his merchandise is stolen, as long as a minority is not stolen. How is Shmuel's ruling to be reconciled with the Mishnah, and how are the rulings of the Rambam and Shulchan Aruch to be reconciled?

(a) The MAGID MISHNEH (Hilchos Gezeilah 5:8) answers that the Rambam in Hilchos Geneivah rules according to Rav, that the majority of the seller's merchandise must belong to him in order for one to be permitted to buy his wares. He rules like Rav because the Gemara in Nidah (24b) states that the Halachah always follows the opinion of Rav in matters of Isur v'Heter (questions involving whether something is forbidden or permitted). Since buying from a thief involves a question of benefiting from and encouraging theft, it is considered a question of Isur v' Heter, and not merely a financial matter. The Magid Mishneh writes that RABEINU CHANANEL and the GE'ONIM also rule according to Rav.

The Magid Mishneh writes that the reason why the Rambam rules according to Shmuel in Hilchos Gezeilah is that he distinguishes between a Ganav (who steals clandestinely) and a Gazlan (who steals openly). Rav's source for prohibiting one from purchasing merchandise from a seller when a majority of his goods are stolen is the Mishnah (118b) which says that one may not buy from shepherds. Shepherds are considered Ganavim because they steal clandestinely and not openly.

Although Rav does not distinguish between a Ganav and Gazlan and he applies his ruling to both, Shmuel does distinguish between them. Shmuel rules that one may buy from a Gazlan as long as a minority of his merchandise is not stolen. In this regard, the Rambam follows the view of Shmuel (despite the general principle that the Halachah follows the view of Rav in cases of Isur v'Heter), perhaps because Rav Yehudah ruled in practice like Shmuel in the case of a Gazlan.

(b) In his second explanation, the Magid Mishneh suggests that there is a difference between a case in which "a majority of the money" in the seller's hands is stolen, and a case in which a "majority of a particular type of object" in the seller's hands is stolen. When a majority of the money in the seller's hands is stolen, one may not buy from him. When a majority of one particular type of object is stolen, one may buy from him. (The Magid Mishneh comments that this is the primary explanation.)

The DERISHAH (CM 368:1-2) explains the Magid Mishneh's intention as follows. A "majority of a particular type of object" means, for example, most of the wood, milk, cheese, or goats found in a shepherd's possession are stolen. While some shepherds are upright and do not steal at all, others are professional thieves and everything in their possession is stolen. When one buys from a shepherd, one does not know if the shepherd is an honest person or a thief. Therefore, one must follow the majority and assume that he is a professional thief. Consequently, he cannot presume that when he buys the object from the shepherd that it is from the minority of objects that he actually owns, because each shepherd is judged by the majority and therefore is deemed to have no permitted merchandise at all.

(This application of the principle of Rov is similar to the law of Rov in other matters, such as Tereifos. If it is known, for example, that a fourth of all cows in a certain region have been found to be Tereifos, it is not assumed that one out of every four cows has the status of a Tereifah. Rather, they all have the status of a kosher animal.)

In contrast, one may buy goods from a person who is not a shepherd, even though he is suspected of stealing. The buyer may rely on the possibility that the objects he seeks to buy are not stolen. In contrast to buying from a shepherd, where the seller-shepherd is a part of many shepherds (and is thus subject to the Rov that states that shepherds are thieves), this suspected Gazlan clearly owns some of his possessions legally. Since he is judged as an individual and not according to a Rov, one may rely upon the possibility that the goods one purchases from him are part of the known quantity of goods that he owns legally.

According to this explanation, the Rambam may rule like Shmuel, in contrast to the way Rabeinu Chananel rules. This ruling follows the general principle (see Bechoros 49b) that in monetary matters the Halachah always follows the opinion of Shmuel. (It is considered a monetary matter because it involves the question of ownership of the item.)

(See BACH (CM 358:1) who gives a similar explanation to that of the Derishah. See also S'MA (CM 358:2, 369:5), TAZ (CM 369:3), and EVEN HA'AZEL, Hilchos Geneivah 6:1.) (D. Bloom)

QUESTION: Rav Yehudah stated that hops, and crops in their early stages of growth (used for animal fodder), are not subject to theft, except in a place where people tend to be particular about them. Ravina commented that the people of Masa Mechasya are particular about these things.

Why were the people of Masa Mechasya particular that people not take their unripe crops used for animal fodder?

ANSWER: The MAHARAM SHIF (in his Siyum on Bava Kama) suggests why the people of Masa Mechasya did not allow people to take their animal fodder. The Gemara in Horayos (12a) teaches that "it is preferable to sit on the garbage piles of Masa Mechasya than to dwell in the palaces of Pumbedisa." RASHI there (DH d'Masa) explains that Masa Mechasya was home to Talmidei Chachamim who were both fit to give Halachic rulings and cultured people. In contrast, the people in Pumbedisa were not so cultured. (See also Rashi in Shabbos (153a, DH d'Sanu), where he writes that the people in Pumbedisa were swindlers, as the Gemara in Chulin (127a) and Bava Basra (46a) says, "Come and I will show you the cheaters of Pumbedisa.")

The Maharam Shif cites the Gemara in Chulin (91a) which teaches that Yakov Avinu remained alone on the other side of the river (see Bereishis 32) because he wanted to recover the small utensils he had left there. The Gemara derives from this incident that Tzadikim value their property more than their own bodies. The reason for their meticulousness is that they seek to stay far away from the transgression of stealing. Therefore, a Talmid Chacham is particular with small amounts of money, even though such for other people such parsimony would be a negative trait.

This explains why Maseches Bava Kama concludes with a description of the conduct of the people of Masa Mechasya. It was a town of Torah scholars who, as Tzadikim, wished to keep themselves far away from any contact with thievery, and thus they were careful about property which most others were not careful about. This positive trait of the residents of Masa Mechasya is mentioned at the end of Bava Kama, the Masechta which deals with the Torah's instructions to respect and value other the belongings of others. (D. Bloom)

QUESTION: Rav Yehudah stated that hops, and crops in their early stages of growth (used for animal fodder), are not subject to theft, except in a place where people tend to be particular about them. The Masechta concludes with the comments of Ravina who added that the people of Masa Mechasya are particular about these things and do not allow them to be taken.

RASHI (DH Masa) writes that the people of Masa Mechasya owned a lot of animals and they required "Mir'eh Tov" -- "good grazing" for animal food.

Why does Rashi add the apparently unnecessary word, "Tov," at the end of his comment? It would suffice for Rashi to write simply that the people in Masa Mechasya needed "grazing" for their abundance of animals. (MAHARSHA)

ANSWER: The MAHARSHA writes that Rashi may be following the custom that one should always finish a section of Torah learning on a good note. Bava Kama begins with a discussion of the four primary types of damages. One of the damages mentioned in the first Mishnah (2a) is Mav'eh, which, according to Rav (3b), refers to a person who causes damage. The Maharsha there writes that the four damages allude to misfortunes which befall the Jewish people, Chas v'Shalom. The damage caused by "Mav'eh" (a person) corresponds to the suffering imposed on the Jewish people by Esav, the forebear of Edom, who is mentioned in the verse which Rav cites as support for his interpretation of the word "Mav'eh": "How Esav has been pillaged! His hidden things sought out (Niv'u)!" (Ovadyah 1:6). Esav is referred to as plain "Adam" ("man") in the verse which discusses the domination of Esav over Yisrael in the verse (Yeshayah 43:4), "And I shall put a man (Adam) in your place."

The last four chapters of Bava Kama (from 62b until the end) deal with damages caused by man. Rashi noticed that Bava Kama, in contrast to most other Masechtos, does not conclude with a piece of Agadah. The reason for this is that Bava Kama, Bava Metzia, and Bava Basra were originally one large tractate that were separated into three smaller ones. Rashi sought to ensure that that Bava Kama would end on a good note even after it was made into a tractate of its own. Therefore, he did not want to conclude his commentary with the word "Mir'eh," the last three letters of which spell "Ra'ah" -- "bad." Rashi added the word "Tov" so that his commentary to Bava Kama would conclude with "Good." (D. Bloom)