We are now beginning the tenth chapter, the concluding chapter of Tractate Bava Kamma, with Mishnah 1. This Mishnah contains two separate matters that have no real connection to each other, and therefore the Gemara divided it into two Mishnayos. The first topic deals with the question of how the sons should handle the obligations left behind by their father: if the father robbed, whether and when it is incumbent upon his sons to compensate the victim.
We will introduce two foundations to understand the wording of the Mishnah, whose words are brief:
The first foundation - a stolen object remains the property of its owner: When Shimon steals Reuven's car, and the car is parked in front of Shimon's house, the car is still Reuven's property, and as explained in the previous chapter, nothing changes this. Hence the obligation of returning the stolen object applies, to return the stolen item to its original owner. The mere fact that the object is not currently in the owner's control does not void his ownership. Therefore, if the robber dies and leaves behind sons who inherit his house, and the stolen car is parked in the driveway, it is clear that the car must return to its original owner, since it belongs to him.
Things become more complicated when the original owner despairs, meaning he loses hope of receiving his property back. Once the victim of the robbery gives up hope for his stolen object, it is as if he declared it ownerless, and whoever holds it now acquires ownership of it. The meaning of this is that the sons may become the legal owners of that car which was essentially rendered ownerless.
The second foundation - a lien on the estate: When children inherit from their parents, there is no personal obligation upon them to pay off the parents' debts, and these debts include the obligation to pay the value of a stolen item that the father stole from someone else. However, creditors and victims of robbery have a claim against the estate that the sons inherit. But according to Torah law, the lien that takes effect on the estate and from which the creditor or the victim may collect, applies only to real estate, meaning land. The land is liened, somewhat like a mortgage to a bank. Movable property, on the other hand, which includes mobile property and cash, is not subject to a lien by Torah law.
In practice: If the father stole a hundred dinars and left his sons a bank account containing some amount of money, and this is his entire estate, then on the one hand, the sons have no obligation to pay their father's victim, since he is not their victim; and on the other hand, the victim has no claim on the estate, since cash is not "property that carries a lien", meaning it is not an asset that is subject to a lien by Torah law. Therefore, the sons are permitted to leave the cash in their possession.
However, if the sons also inherited land, such as a farm, it passes to them while it is liened to creditors and to whoever was harmed by the father. The matter is similar to a mortgage: if a bank has a mortgage on the house and the sons inherit it, the bank's right takes precedence. The same is true here: if the father stole a hundred dinars and owns a farm, those hundred dinars are attached to the farm, and when the sons inherit it, the victim has the right to claim from the estate by virtue of the lien on the land.
It is worth noting that all this is according to the law of the Mishnah. After the Talmudic period, the Geonim enacted that the lien of a creditor or a victim on the estate should apply not only to real estate, but even to movable property: jewelry, cash, the car in the driveway, and the like, so that the creditor or the victim will be able to collect from them as well. This is not the wording of the Mishnah, but this is the practical halachah.
The wording of the Mishnah:
The Mishnah begins: "Hagozel uma'achil et banav" - the father stole, sold the stolen item, and with its proceeds fed his children. The sons thus received an indirect benefit. There is no exclusivity specifically to the sons, and the same law applies if he fed his neighbors or his friends with it. The novelty of the Mishnah is that even though the sons benefited from what was stolen, they are exempt from payment.
It is understood that this applies on the assumption that what they ate had already left the possession of the original owners, whether due to despair or due to a physical change. For if the father stole an apple from the victim and the children ate that very same apple, they themselves turn out to be robbers, since they ate the victim's apple, and in such a case they would be obligated to pay. This is not the case with which our Mishnah deals.
The complete sentence in the Mishnah is worded as follows, and here is a breakdown of its parts:
"Hagozel uma'achil et banav" - As explained above. The letter "vav" that follows means "or", and not "and", as it introduces a separate and additional case.
"Hini'ach lifneihem" - The father left an estate for his children, and within the estate are the products of his robbery: the father stole wood and made a table out of it, and now that table sits in the living room of the inheriting children.
"Peturin min hatashlumin" - The children are not obligated to pay. Even if they know very well that the table in their living room is made of wood that their father stole, they have no obligation to return the table to the victim, nor even the value of the stolen wood.
"Ve'im hayah davar sheyesh bo acharayut - chayav leshalem" - If the estate included an asset that has a lien according to halachah, such as if they inherited not only the table but an entire apartment, they are obligated to pay the victim. The victim claims: The wood your father stole was worth a hundred dinars, and I have a lien of a hundred dinars on your apartment, pay me or I will collect from the apartment. But without land, if all they inherited was the table and cash, they owe nothing. This is the text of the Mishnah; but in halachah, due to an enactment of the Geonim, even the table and cash are subject to a lien.
The second part of the Mishnah - benefiting from unlawfully obtained money:
The second part of the Mishnah opens up a completely new realm, dealing with the problem of deriving benefit from stolen property. Later, outside of this Mishnah, we will discuss the Torah prohibition of "lifnei iver lo titein michshol" (do not place a stumbling block before the blind), which also includes directly assisting a person to commit a transgression: if he could not have done it without your participation, it is a Torah prohibition; and if he could have done it or would have done it even without you, there is only a rabbinic prohibition of assisting in a transgression.
Here, however, we are talking about someone who derives only an indirect and slight benefit. The two examples in the Mishnah are changing a large coin into smaller coins and receiving money for charity, and in both of them the benefit is not great. Nevertheless, if the source of the funds being changed or given to charity is unlawfully obtained money, there is a rabbinic prohibition. It is neither proper nor decent to use these funds, nor even to derive this type of indirect benefit from them.
Who are the moches and the gabbai:
Moches - One who collects payment for the transit of goods or people. Whoever crosses the border pays a customs tax.
Gabbai - One who collects tax not from travelers but from the local residents, similar to a poll tax: everyone pays a fixed amount per year.
Two forms of tax collection:
Lawful collection: The government authorized the moches to collect tax, such as one percent from anyone crossing the border. Here, the principle of "dina demalchusa dina" (the law of the land is the law) applies, meaning state law determines the halachah, and the collection is legitimate and not considered robbery. This is provided that the method of collection is fair, meaning he collects the same rate from everyone. The same applies to a gabbai who collects a fixed poll tax from each person.
Unlawful collection: Either he has no authorization at all, but is essentially a robber who set up a roadblock and decreed that anyone passing through must pay him a tenth of their property; or he received authorization from the authorities but does not act fairly, imposing more on the rich or extorting extra. In such a case, the collection amounts to robbery, and the funds accumulating in his coffers are unlawfully obtained money.
Regarding this, the Mishnah says: "Ein portin miteivat hamochesin velo mikis shel gabbai" - If the moches acts unlawfully and his funds are stolen, it is forbidden even to change money with him. Changing money involves giving a large coin and receiving small coins in return. Nowadays, this can be compared to currency exchange, when a person needs shekels and his friend has dollars, as there was a difference in value between the large coin and the small coin. Even though there is only a minor benefit for his own needs here, he is participating in receiving an indirect benefit from the robbery, and it is a disgraceful thing. "Miteivat hamochesin" - from the cashbox of the customs collectors, "u'mikis shel gabbai" - and from the wallet of the local tax collectors.
"Velo yitol mehen tzedakah" - It is even forbidden to accept charity from them from that same cashbox and wallet, because by doing so one essentially launders unlawfully obtained money and passes it on. The Gemara adds a reason: so that they are not given a sort of approval and validation that their actions are legitimate, due to the fact that a certain percentage of the money is dedicated to charity. And all this is on the assumption that the money was obtained unlawfully.
The continuation of the Mishnah deals with a situation in which those tax collectors also have legitimate sources of income, so their private money is a mixture of legitimate funds and unlawfully obtained funds. In such a case, we do not say that all of that person's money is disqualified because a part of it comes from a forbidden source, rather "Aval notlin heimenno mitoch beito o min hashuk" - but one may take from him from within his house or from the marketplace. There are three examples of this:
Changing money: It is permissible to approach a neighbor who is a tax collector and ask him to change money, provided that the funds come from his private money.
Charity: It is permissible to ask him for a donation, such as for a friend who is making a wedding and needs money, since the money comes from a source that is a mixture of invalid and legitimate funds, and we assume it comes from the legitimate ones.
Buying in the marketplace: If that moches comes to a store to buy a pair of shoes and pays from his personal wallet, it is permissible to accept his money, because assuming he also has legitimate sources of income, we assume that the money received comes from a legitimate source.
In summary: In this Mishnah, we learned two concepts. The first - the law of sons who inherit stolen property: they have no personal obligation to pay off their father's debts, and therefore they are exempt from payment when he fed them or when he left the products of the robbery before them, and only when he left them "property that bears a lien" does the victim collect by virtue of the lien, and according to the halachah, by a decree of the Geonim, even from movable property. The second - the prohibition against benefiting, even indirectly, from money obtained through a transgression: one may not make change from the cashbox of a dishonest tax collector and one may not take charity from him, but one may take from him from his house or from the marketplace, when the funds are mixed and we can attribute them to a permissible source.