An Ox, a Donkey, a Sheep, and a Garment Walk Into a Bar…

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

Tractate Bava Kamma began by laying out several categories of inadvertent or negligent injury. There was Ox, which covers all kinds of damage caused by an animal, from trampling crops to goring with a horn; Fire, which covers damage caused by fire or other mobile but inanimate hazards; and Pit, which covers stationary hazards. In each case, the Talmud, building on biblical precepts, prescribes a duty of care and outlines the kinds of damages that must be paid by someone whose neglect causes damage to another person’s livestock, property, or person. Not until this week, however, did the rabbis deal with a case of intentional property damage—in particular, theft. Theft is the subject of the discussion in Chapter Seven, which begins with a brief Mishnaic statement on Bava Kamma 62b, followed by a very long discussion in the Gemara.

If a thief steals property, the Bible explains, he is required to pay restitution plus extra damages. Exodus Chapter 22 distinguishes between two cases of theft of livestock. If a thief is found in possession of a stolen animal, he must pay twice its value to the owner; but if he is found to have slaughtered or sold the animal, he must pay a higher multiple, “five oxen for an ox and four sheep for a sheep.” Here again, the Bible speaks of property loss primarily in terms of animals, which makes sense for two reasons: They are relatively easy to steal, because they can move on their own, and they were a common form of property among the pastoral tribesmen of ancient Israel. However, the use of livestock as an example means that the rabbis are compelled to extrapolate the rules for other types of theft. As we have seen several times before, the brief, concrete statements of the Bible must be analyzed in order to figure out their governing principles, which can then be more widely applied.

In doing so, the rabbis must engage in some complex hermeneutics. The governing assumption when the Sages read the Torah is that there are no superfluous statements; every word of the text is there for a reason, down to the conjunctions and articles. Here, the key passage is Exodus 22:6-8, which deals with how to resolve disputes about deposits—that is, a situation in which A gives B some property to safeguard, and B then refuses to return it, claiming that it is his own. The Bible says: “For any matter of trespass, from an ox, for a donkey, for a sheep, for a garment, for any lost item about which one shall say: This is it, the claims of both of them shall come before the judges, the one whom the judges convict shall pay double to his neighbor.” In a society in which most wealth was held in the form of property rather than money, and in which banks did not exist, it is easy to imagine that such disputes would have been common.

This biblical statement, the Gemara observes, follows a common rhetorical pattern, which the rabbis refer to as klal u’prat u’klal, “a generalization followed by a specification followed by a generalization.” This is one of the basic hermeneutical rules the rabbis use to interpret the Bible, and it holds that in such cases, the generalization is meant to be guided by the specifics: We must figure out what the details have in common, and use that to deduce the scope of the generalization. In this case, the passage begins with one generalization, “any matter of trespass,” and ends with another, “any lost item.” In between comes a list of four examples: ox, donkey, sheep, garment.

The question, then, is why the Bible lists these four things in particular: What is the common element here? In the Gemara, the rabbis think through the problem. If the Bible had mentioned only ox, donkey, and sheep, we might think that the rule about double damages applied only to misappropriation of living property, that is, livestock. By adding garments, it suggests that inanimate property is also included. On the other hand, the Bible does not mention immovable property, such as land; or human property, such as slaves; or financial instruments like contracts, which are valuable because of what is written on them, not for the material itself. Finally, the Bible implicitly rules out consecrated property that belongs to the Temple, since it mentions “his neighbor,” meaning that the owner of the disputed property must be a private individual. Summing up these conclusions, the Gemara offers a formula: Double damage must be paid for “any item that is movable property and has intrinsic monetary value.”

This is strongly and clearly reasoned, but as the rabbis go on to demonstrate, it is not beyond challenge. The trick of klal u’prat u’klal is figuring out the logical principle that unites the specifics. But what if more than one principle seems to apply? For example, the Gemara notes that sheep, oxen, and donkeys are not just all “movable property,” but have another quality in common: They are items “whose carcass transmits tumah [ritual impurity].” That is, if a human corpse, which is tamei, touches an animal carcass, and then a living person touches that carcass, he contracts the corpse’s tumah. Perhaps this is why the Bible groups these three animals together for liability to double damages; and if this is so, then other kinds of animals, which do not transmit tumah, should not be similarly liable. The Gemara mentions birds: If someone is found to have misappropriated a chicken, maybe he does not have to pay twice the value of the chicken to its owner, since a chicken does not transmit tumah and thus does not belong in the same category as oxen, sheep and donkeys.

There is one obvious rebuttal to this argument, which is that it fails to take into account the Bible’s inclusion of garments in this list. Garments do not transmit tumah, so how can transmission of tumah be the common element making for double damages? True, the Gemara parries, but “we are speaking of animals”: Perhaps the tumah rule applies to all animals, though not to inanimate objects. But if this is so, the Gemara rebuts itself: “Let the Merciful One write one detail.” If the Bible wanted to connect liability with tumah, it could have done so by mentioning just oxen or just donkeys. Since it listed several species, this implies that all species, including birds, are liable for double damages. (Incidentally, this formula, “let the Merciful One write,” is to me one of the most telling of Talmudic locutions because it suggests that the rabbis were able to contemplate giving the Almighty advice about different ways of writing the Bible. Of course, they believed that the way he chose to write it was the best possible way; but the ability to hypothesize about Scripture suggests a sort of collegial feeling toward God as a fellow-lawmaker.)

On the other hand, if the Bible had named just one species, the Sages reason, this might have proved misleading in other respects. For instance, say the verse mentioned only oxen. In this case, “I would say that [if] it is sacrificed on the altar, yes; [if] it is not sacrificed on the altar, no.” Because oxen are sacrificial animals, one might conclude that only sacrificial animals are liable for double damages, which would be a mistake. Likewise, if the Bible mentioned only donkeys, one must mistakenly conclude that the relevant distinction is that a donkey’s first-born is sacred—it belongs to the priesthood and must be redeemed by payment, like a firstborn son. Because the Bible mentioned oxen and donkeys and sheep, we are to understand that it means to include all animals.

Later in the same discussion, the rabbis introduce several other questions relating to theft. What if the thief steals raw materials and then turns them into something else—for instance, he steals lumber and uses it to build a house? Or what if the stolen object changes status—for instance, he steals a newborn calf and it grows up to be a bull? How do we calculate the damages owed? Does the thief pay double the value of the item when he took it, or the item as it now exists? If the latter, why should the original owner benefit from the thief’s labor? And what happens if a second thief steals the item from the first thief—must he pay the first thief compensation? If the item was never the first thief’s legal property, how can he claim any right to be compensated? Such questions lead to the intriguing and counterintuitive concept of “despair”: According to some authorities, once the original owner despairs of ever retrieving his property, it then becomes the property of the thief. But others disagree, and the disputes continue—eight full pages of Gemara to a couple of lines of mishna, suggesting that for the rabbis, the process was as important as the product.

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