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Finders Keepers, Inferior Land for Wedded Bliss, and Other Property Matters

‘Daf Yomi’ zig-zags from impure wine to the Talmud’s apocryphal reasoning for the destruction of the Temple

Adam Kirsch
February 09, 2016
Main image: Shutterstock
Main image: Shutterstock
Main image: Shutterstock
Main image: Shutterstock

This week’s Daf Yomi reading could have been designed to demonstrate the Talmud’s extremes of halakha and aggada. In the space of a few pages in Tractate Gittin, the sages moved from highly technical debates about property law to extravagant legends about the destruction of the Jerusalem Temple by the Roman general Titus. One of the things that makes reading Daf Yomi consistently interesting is that you never know when this kind of shift is going to happen: The Talmudic discussion, like a river, follows its own course, paying no attention to the boundaries of logic or subject matter. Indeed, all of this week’s reading, in chapter 5 of Gittin, is unrelated to the ostensible subject of the tractate, which is divorce.

Chapter 5 begins by continuing the rabbis’ list of ordinances adopted for the sake of tikkun olam, the betterment of the world. As we have seen, this Talmudic formula has nothing to do with the contemporary idea of tikkun olam as social justice. It is, rather, a technical term referring to legal reforms designed to make the law function more fairly and effectively. A good example comes in the mishna in Gittin 48b, where we learn that “one who finds a lost item and returns it to its rightful owner is not required to take an oath that he did not keep any part of the lost item for himself.”

The rationale here seems to be that, if you had to take an oath in order to return someone’s lost property, you might decide that the whole matter was too much trouble. You might even worry that you would get ensnared in a lawsuit for your trouble. In that case, people wouldn’t ever bother to return lost property, and so everyone would be worse off. In this sense, the rabbis’ ruling that no oath is required is clearly “for the betterment of the world,” since it removes a barrier to the return of lost property, thus benefiting everyone. There seems to be a parallel here with the kind of laws known in the United States as “Good Samaritan” laws, which state that a person who tries to aid someone in danger will not be held responsible if things go wrong.

Once this principle is established, however, the Gemara immediately begins to test its limits. Say that you lost two bags of money that were tied together, and someone returns one of the bags to you, but claims that he never saw the other bag. In this case, there is a good reason for thinking that the finder may be holding back some of the lost property, since in the ordinary course of events it would not be possible to find just one of the money bags. In this case, then, Rabbi Yitzhak says that the finder does have to take an oath, stating that he is not holding on to the other bag. If, on the other hand, you lost two oxen, and someone returns just one of them, the finder does not have to swear an oath saying that he is not holding on to the second ox. This is because, unlike bags of money, oxen can walk off by themselves, so it is reasonable to assume that the two oxen became separated at some point.

This is just one of several matters of property law that came up in last week’s reading. Chapter 5 of Gittin begins with a long discussion of how the court can seize real estate for the repayment of debts. There are, we learn, three categories of landed property: superior quality, intermediate quality, and inferior quality. The categories are never precisely defined, but they play an important role when deciding how real estate is to be used to repay debts. If a person owes damages to someone he has injured, the court seizes his best land to pay the penalty; when it comes to paying a woman’s marriage contract, on the other hand, inferior quality land is used.

Why make an arrangement that is so disadvantageous to wives? The reason, Rabbi Shimon explains, is that “a woman wants to become married” more than a man does. Thus she will readily agree to being paid in inferior land, not wanting this to become an obstacle to making a match. A man, on the other hand, might refuse to get married if he knew that divorce would lead him to lose his best land. These kinds of assumptions about gender are pervasive in Jewish law, turning up even in unexpected places like this one.

Ordinary property damage is difficult enough to assess; but when the property at issue has Jewish ritual value, things are even more complicated. The mishna in Gittin 52b deals with such cases—for instance, if I take a bottle of your wine and use it to pour a libation to an idol. This act renders the rest of the bottle undrinkable under Jewish law, so I have clearly inflicted a loss on you. At the same time, by doing homage to an idol, I have also incurred the death penalty; and ordinarily, Jewish law says that you cannot inflict two different punishments for the same crime. If I am sentenced to death—whether or not the court could or would carry out the sentence is another matter—does that mean I am released from the obligation to pay you back for the ruined wine?

The mishna says that it is a question of intent: If I ruined your wine intentionally, I have to pay you for its value, but if I did so accidentally, I don’t have to pay. Why do both penalties, the penalty for theft and that for idolatry, come into effect? Because, Rabbi Yirmeya explains, I have actually committed two different acts. From the moment I picked up your wine, I took possession of it and so committed the crime of theft. Only later, when I poured the libation before the idol, did I commit idolatry. In this way, the law ensures that I can’t use a worse crime to let myself off from a lesser crime.

It was toward the end of this week’s reading that we came to some of the most famous aggadic stories in the whole Talmud. These stories deal with the destruction of the Jerusalem Temple in 70 CE, at the end of the ruinous Jewish rebellion against the Roman Empire. Josephus, the Jewish priest and general who wrote the only surviving history of the rebellion, offers a variety of explanations for the catastrophe—political, religious, and economic. The Talmud, however, reduces the complex event to a moral homily: “Jerusalem was destroyed on account of Kamtza and bar Kamtza.”

The story goes that a certain man was giving a banquet, and instead of inviting his friend Kamtza, he accidentally sent an invitation to his enemy, the similarly named bar Kamtza. Finding his enemy at the party, he publicly insisted that bar Kamtza leave, finally resorting to force: “The host took bar Kamtza by his hand, stood him up, and took him out.” Bar Kamtza was incensed by this ill treatment, and particularly by the fact that none of the sages present at the banquet did anything to protest. To get revenge, he embroiled the Temple priests with the Roman authorities by deliberately mutilating a calf that was to be sacrificed on the emperor’s behalf. When the priests, seeing the blemish on the calf’s upper lip, refused to sacrifice it, the Romans saw this as open disobedience, and so began the war.

This story is, of course, implausible. Josephus offers a more credible explanation, which is that a radical faction of priests refused to make sacrifices on behalf of the emperor, as a political protest. But as a moral lesson, the story of Kamtza and bar Kamtza serves a double purpose. First, it emphasizes the need for Jews to treat one another with brotherly respect; contempt for other Jews is the sin that leads to the downfall of the whole people. This lesson is especially timely today, in our bitterly divided Jewish world. And second, the story emphasizes the central role of the Torah scholars. If the sages at the banquet had spoken up against bar Kamtza’s mistreatment, as they should have, the whole catastrophe would have been averted. This is both a chastisement of the sages and a reinforcement of their authority: In the Talmud’s view, the whole course of history rests on their actions.


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Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.

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