We continue in Chapter 10 of Tractate Bava Kamma, to Mishnah 2. In this Mishnah, many different things happen, and they are all very interesting, and it opens as a direct continuation of the previous Mishnah. There we learned that a person is forbidden to benefit from stolen items, even when it is a minor benefit, because the matter is detestable and inappropriate. Here the Mishnah discusses two cases:
"Natlu mochsin es chamoro venasnu lo chamor acher" - the tax collectors, the illegal toll exactors, confiscated a person's donkey, and out of pity for him gave him another donkey in its place: a less valuable donkey, which had been confiscated from someone before him. Is he permitted to keep the donkey?
"Gazlu listim es kesuso venasnu lo kesus acheres" - robbers standing on the side of the road demand a traveler's money. He replies that he has none, pulls out his pockets and they are empty, but they do not believe him: in the days of the Mishnah there were no safes, and people would sew their money into their clothes. They strip him to check his clothes, and when he is left on the side of the road without clothing, they throw him some rags. Is the robbery victim permitted to keep the clothes that were thrown to him?
The Mishnah replies: "Harei elu shelo" - they are permitted to keep them for themselves. And the reason, in the words of the Mishnah: "Mipnei shehabe'alim misya'ashin mehen" - the original owners of the donkey or the clothes have already despaired and lost hope of getting them back.
Ye'ush and shinui reshus:
This is the first place in the Mishnah where the rule appears explicitly: when two components combine - ye'ush, the owner giving up hope of getting his item back, followed by shinui reshus, the transfer of the item to another person's domain - the item becomes the legal property of the new possessor.
To illustrate: if Shimon robbed Reuven, and Levi bought the item from Shimon, the item still belongs to Reuven. But if Reuven despaired first, and only afterward did Levi purchase the item from Shimon - then the two components, ye'ush followed by shinui reshus, effect a complete transfer of ownership to Levi.
Our Mishnah introduces a novel concept that even though the tax collectors and the robbers acted unlawfully, we assume that the robbery victims automatically despaired of getting their property back. After all, if the robbers were Jews, in the absence of witnesses there is no way to claim the property back, even with the help of law enforcement. Therefore, whoever received the replacement donkey or the replacement clothes is permitted to keep them.
However, if the recipient knew very well that the previous owner had not lost hope - for example, he saw the act and heard the previous victim declaring, "I am not despairing, I am not losing hope, I will get them back from you" - he is obligated to return the item to its original owner, since there was no ye'ush here. Only when one can safely assume that there was ye'ush, is he permitted to keep it.
Minimizing a loss is not deriving a benefit:
Seemingly, one could ask: after all, the previous Mishnah stated that it is forbidden to derive even a minor benefit, like getting change from stolen money - so how then is it permitted here to ride off into the sunset on the stolen donkey? The answer is that the Mishnah differentiates between deriving a benefit, which the previous Mishnah dealt with and which is detestable and inappropriate, and the case before us, in which the person is not deriving a benefit but minimizing his loss: he lost an excellent donkey and received a poor donkey, lost fancy clothes and received rags. His agreement to accept an item whose value is less than what was taken from him is solely intended to minimize his loss, and minimizing a loss is not like deriving a benefit. This distinction exists throughout halachah, and is true here as well.
According to this, even though the previous Mishnah stated that we do not get change from the tax collector who has stolen money in his possession, if the tax collector demands fifty as a tax and extorts it from you, and you only have a hundred, and he gives you back fifty as change - you are permitted to keep the change. Refraining from taking the fifty is merely increasing your loss; receiving the change is not called getting change, but rather minimizing the loss, so that you do not lose a whole hundred.
This concludes the first part of the Mishnah, which presents the important principle of ye'ush followed by shinui reshus - the despair of the original owner and the transfer of the item to a new person, which changes the ownership permanently.
"Hamatzil min hanahar umin hagayis" - One who rescues from a river or from an invading army:
Continuing this line of thought: Reuven lost his property - a river overflowed its banks and swept away his coat (and even if his name and phone number are written inside the coat with a request to return it to its owner, what does it matter? It was swept away in the river), or troops of looters passed through the city and took whatever they wanted, or robbers put a gun to his head and demanded his coat.
If the owners gave up hope - for example, he was heard saying, "Oh, my poor coat, I will never see it again" - then the one who rescues the object from the river, from the invading troops, or from the robbers acquires it for himself. The reason is one and the same: yeiush, giving up hope of getting it back, followed by its transfer to the new finder. But if the finder did not know that there was yeiush, he is obligated to return it, due to the mitzvah of returning lost property.
Swarms of Bees:
From here, the Mishnah moves on to the matter of beehives. People kept bees in their courtyards for honey production. However, from a halachic perspective, ownership over an object requires a formal act of acquisition, and when it comes to bees, one does not perform an act of acquisition on them: one does not lift them up, and they are undomesticated wild creatures that fly around as they please. If a person is lucky and bees settled in his courtyard and he produces honey from them - is he their owner?
Under Torah law they are not his, since he did nothing to acquire them. Even his domain does not acquire them for him, because it is not secured - the bees are not guarded in his domain, but rather come and go as they please. However, the Sages established rabbinically that a swarm of bees belongs to the owner of the courtyard where it settled, making this a rabbinic level of ownership.
Therefore, if a swarm of bees was taken from Reuven by Shimon, and Reuven gave up hope of getting it back - Shimon is permitted to keep it: whether it is the bees that were relocated, or the hive that he ultimately ended up with. In other words, the law of yeiush applies even to swarms of bees.
What is the novelty here? We have already learned that yeiush and a change of domain acquire an object, so why would the law for bees be any different? Rather, since ownership over the bees is only rabbinic, one might mistakenly think that there is no need even for yeiush to acquire them: perhaps all that makes the bees yours is the very fact that they settled in your courtyard, and therefore, once the bees moved from Reuven's courtyard to Shimon's courtyard - whether they got up on their own, whether someone chased them off, or whether someone took the hive and moved it elsewhere - they would belong to Shimon. The Mishnah teaches us that this is not so: Reuven's rabbinic right to the bees stands until he gives up hope and loses the expectation of getting them back.
And how do bees move from their place? When the colony grows too large, the bees form a swarm and leave: the queen abandons the hive and settles on a branch, and more than half the colony gathers around her to protect her and cool her down. Meanwhile, scout bees locate a new place, and the colony quickly moves there. While the swarm is clustered on the branch waiting for its destination, the bees are relatively calm and easy to catch, making it possible to return them immediately and encourage them to resettle in Reuven's courtyard.
And from here to the case in the Mishnah: Reuven finds out that most of his bees got up and left in a swarm for another place. He searches for them and discovers that they are located in Shimon's backyard, and he wants to get them back. Regarding this, the Mishnah states: "Amar Rabbi Yochanan ben Broka: Ne'emenes ishah o katan lomar mikan yatza nachil zeh" - Rabbi Yochanan ben Broka said: A woman or a minor is believed to say, "This swarm came from here" - even a woman or a minor is believed to state the origin of the swarm of bees.
This requires explanation, since normally the testimony of a woman or a minor is not admissible in a Beis Din under Torah law. The Gemara explains that two conditions are present here:
Publicizing the loss: Reuven filed a complaint with the authorities, spread the word around town, and hung notices on telephone poles, until it became publicly known that he had lost a swarm of bees.
Speaking innocently: The minor or the woman speaks innocently and in mere casual conversation - "We saw a swarm of bees this morning that settled on the mailbox" - and they are not stating these things as formal testimony.
In such a case, these words are acceptable in Beis Din. Reuven claims that he is searching for his bees and everyone knows this, and another person comes and reports that he heard children talking about a swarm that passed to the other side of the city - and based on this, Reuven is allowed to say, "These are my bees," and to approach Shimon's courtyard and take them back.
"Umehalech betoch sedeh chavero lehatzil et nechilo" - and he may walk through his friend's field to rescue his swarm:
Reuven, the original owner, is therefore permitted to enter Shimon's courtyard and retrieve his bees for himself, and Shimon is not allowed to claim against him, "You are a trespasser, what are you doing in my courtyard" - because preventing a person from accessing his own property is considered theft by rabbinic law. If a person kicked his ball and the ball fell into your courtyard, you are not allowed to say, "It is true that the ball is yours, but I will not let you enter and take it." This is forbidden, and is called gezel miderabanan. Here too, Shimon must allow Reuven access, and Reuven enters to take his bees.
"Ve'im hizik meshalem mah shehizik" - and if he caused damage, he pays for what he damaged:
What if, on his way to the bees, Reuven tramples Shimon's tomato patch? The Mishnah addresses this. The novel ruling is that he is permitted to enter and take his bees even when he knows in advance that damage will be caused to the tomatoes; however, the permission to take the bees is not permission to cause damage without paying. Therefore, Reuven takes his bees, and pays for the tomatoes he damaged in Shimon's courtyard.
"Aval lo yakotz et socho al menat litan et hadamim" - but he may not cut off his branch with the intention of paying the money:
Although permission was granted, it has limits, according to the first opinion of Rabbi Yochanan ben Beroka. Reuven is not allowed to say to Shimon: "The bees are all swarming on the branch of your tree; I will not gather them one by one, since that is dangerous and impractical, but rather I will cut off the entire branch and carry it to my courtyard, and they will settle there. It is true that I am ruining your tree branch, but I will compensate you for its full value." To this, Rabbi Yochanan ben Beroka says: This is not in your power. And the reason: With tomatoes, which are meant for eating or selling, Reuven can give new tomatoes or compensate for the loss of the sale; however, a branch that is cut off is not replaceable - one cannot graft a prosthetic branch, the tree remains defective and ugly, and its owner can no longer hang his hammock from it. And since it cannot be replaced, there is no permission to cut it off.
Conversely, Rabbi Yishmael, the son of Rabbi Yochanan ben Beroka, disagrees and says: "Af kotzetz venoten et hadamim" - he may even cut it and pay the money - meaning Reuven is permitted to even cut off the branch of Shimon's tree, knowing clearly that he is causing damage, in order to retrieve his lost swarm, provided that he pays for the damage he caused.
The basis of the dispute lies in the question of whether Yehoshua bin Nun stipulated such a condition during the conquest of the Land of Israel or not, and this adds complexity. There is further complexity in the fact that Rabbi Yishmael is the son of Rabbi Yochanan ben Beroka: The father says that this was not the tradition he had received, whereas the son brings a tradition that this was indeed one of Yehoshua's conditions - and he certainly received this tradition from his teachers and not from his father. In any case, this is his opinion.
For the halachah: The Bartenura learns according to the Rambam's opinion and rules "the halachah does not follow Rabbi Yishmael," meaning that there are limits, and Reuven is not permitted to cut the branch from Shimon's tree, since it is not replaceable. The Rema brings the other opinions, the opinions of the Rosh and the Tur, that even the branch of the tree may be cut, only that Reuven must pay for the damages he caused. Both opinions are brought in the Rema, and in the Shulchan Aruch the matter remains a dispute.
In summary: In this Mishnah, we learned the important principle of yiush and a change of domain, which transfers ownership permanently: One who takes an alternative donkey or garment from tax collectors or robbers - "they belong to him," because the owners despair of recovering them. We discussed the distinction between deriving benefit, which was forbidden in the previous Mishnah, and minimizing loss, which was permitted; the law of "one who rescues from a river or from an army" after yiush; and bee swarms, where the ownership over them is by rabbinic law, and even for them yiush is required. We also learned about the credibility of a woman or a minor who speak innocently after the owner has publicized his loss, Reuven's right to walk through his friend's field to rescue his swarm and pay for what he damaged, and the dispute between Rabbi Yochanan ben Beroka and his son Rabbi Yishmael regarding the law of cutting the branch - which remains a dispute even in halachic rulings.