Responsa for Bava Kamma 228:37

אמר רבא לא שנו אלא בעל הבית העשוי למכור כליו אבל בעל הבית שאינו עשוי למכור כליו

and a woman or a minor speaking in all innocence<span class="x" onmousemove="('comment',' Without any intention of giving evidence. ');">²⁹</span> said that this swarm started from here. R. Ashi said: Remarks made by a person in the course of speaking in all innocence cannot be taken as evidence, with the exception only of evidence [of the death of a husband] for the release of his wife.<span class="x" onmousemove="('comment',' Cf. Yeb. XVI, 5-7. ');">³⁰</span> Said Rabina to R. Ashi: Is there no other case in which it would be taken as evidence? Surely in the case of a swarm of bees we deal with a remark made in all innocence?<span class="x" onmousemove="('comment',' As stated in our Mishnah here. ');">³¹</span> The case of a swarm of bees is different, as the ownership of it has only Rabbinic sanction. But does not the same apply to ordinances based on the Written Law?<span class="x" onmousemove="('comment',' I.e., would ordinary conversation not be trusted? ');">³²</span> Did not Rab Judah say that Samuel stated<span class="x" onmousemove="('comment',' Keth. 26a. ');">³³</span> that a certain man speaking in all innocence declared, 'I remember that when I was a child I was once hoisted on the shoulders of my father, and taken out of school and stripped of my shirt and immersed in water<span class="x" onmousemove="('comment',' In a mikweh to become levitically clean; cf. Kid. 80a. ');">³⁴</span> in order that I might partake of <i>terumah</i> in the evening,'<span class="x" onmousemove="('comment',' As in Ber. I, 1. ');">³⁵</span> and R. Hanina completed the statement thus: 'And my comrades were kept separate from me<span class="x" onmousemove="('comment',' Not to cause defilement. ');">³⁶</span> and called me, Johanan who partakes of <i>hallah</i>,'<span class="x" onmousemove="('comment',' Which is the first of the dough and is on a par with terumah; v. Num. XV, 19-21. ');">³⁷</span> and Rabbi raised him to the status of priesthood upon the strength of [this statement of] his own mouth?<span class="x" onmousemove="('comment',' Though a prohibition of the Written Law was involved and the man was talking in all innocence. ');">³⁸</span> — This was only for the purpose of eating <i>terumah</i> of mere Rabbinic authority.<span class="x" onmousemove="('comment',' For Rabbi lived after the destruction of the Temple when (according to some authorities) all terumah was of mere Rabbinic sanction; cf. Pes. 44a. ');">³⁹</span> Still, would this not apply<span class="x" onmousemove="('comment',' I.e., would ordinary conversation not be trusted? ');">⁴⁰</span> also to [prohibitions based on] the Written Law? Surely when R. Dimi arrived<span class="x" onmousemove="('comment',' From Palestine to Babylon; v. Rashi M.K. 3b. ');">⁴¹</span> he stated that R. Hana of Kartigna,<span class="x" onmousemove="('comment',' I.e., Carthage rebuilt under the Roman Empire on the northern coast of Africa. ');">⁴²</span> or, as others said, R. Aha of Kartigna related a certain case brought before R. Joshua b. Levi, or, as others say, before Rabbi, regarding a certain child speaking in all innocence who said, 'I and my mother were taken captive among heathens; whenever I went out to draw water I was thinking only of my mother, and when I went out to gather wood I was thinking only of my mother.' And Rabbi permitted her to be married to a priest on the strength of [the statement<span class="x" onmousemove="('comment',' From which it appeared that no immoral act was committed upon the mother. ');">⁴³</span> made by] the child!<span class="x" onmousemove="('comment',' Keth. 27b. Though the prohibition involved was Biblical, for according to Lev. XXI, 7, a priest may not marry a woman who had immoral intercourse. ');">⁴⁴</span> — In the case of a woman taken captive the Rabbis were always lenient.<span class="x" onmousemove="('comment',' On account of the immoral act being a matter of mere apprehension; cf. Keth. 23a. ');">⁴⁵</span> HE MAY HOWEVER NOT CUT OFF HIS NEIGHBOUR'S BOUGH [etc.]. It was taught:<span class="x" onmousemove="('comment',' Supra 81b. ');">⁴⁶</span> R. Ishmael the son of R. Johanan b. Beroka said: It is a stipulation of the Court of Law that the owner of the bees be entitled to come down into his neighbour's field and cut off his bough [upon which his bees have settled], in order to rescue his swarm of bees, while the owner of the bough will be paid the value of his bough out of the other's swarm; It is [similarly] a stipulation of the Court of Law that the owner of the wine pour out the wine [from the flask] in order to save in it the other man's honey,<span class="x" onmousemove="('comment',' Cf. Mishnah infra 115a. ');">⁴⁷</span> and that he can recover the value of his wine out of the other's honey.<span class="x" onmousemove="('comment',' Cf. Mishnah infra 115a. ');">⁴⁷</span> It is [again] a stipulation of the Court of Law that [the owner of the wood] should remove his wood [from his ass] and load on it the other man's flax [from the ass that fell dead], and that he can recover the value of his wood out of the other's flax; for it was upon this condition that Joshua divided the Land among the Israelites.<span class="x" onmousemove="('comment',' Supra 81b. ');">⁴⁶</span> <b><i>MISHNAH</i></b>. IF A MAN IDENTIFIES HIS ARTICLES OR BOOKS IN THE POSSESSION OF ANOTHER PERSON, AND A RUMOUR OF BURGLARY IN HIS PLACE HAD ALREADY BEEN CURRENT IN TOWN, THE PURCHASER [WHILE PLEADING PURCHASE IN MARKET OVERT] WOULD HAVE TO SWEAR HOW MUCH HE PAID [FOR THEM]<span class="x" onmousemove="('comment',' Cf. the oath in Litem administered by the Romans though in different circumstances; v. Dig. 12, 3. Cod. 5, 33; 8, 4, 9; cf. also supra p. 359 and Shebu. VII, 1-3. ');">⁴⁸</span> AND WOULD BE PAID ACCORDINGLY [AS HE RESTORES THE ARTICLES OR BOOKS TO THE PLAINTIFF]. BUT IF THIS WAS NOT SO, HE COULD NOT BE BELIEVED, FOR I MAY SAY THAT HE SOLD THEM TO ANOTHER PERSON FROM WHOM THE DEFENDANT PURCHASED THEM [IN A LAWFUL MANNER]. <b><i>GEMARA</i></b>. But even if a rumour of burglary in his place had already been current in town, why should the law be so?<span class="x" onmousemove="('comment',' I.e., to force the possessor to make restoration. ');">⁴⁹</span> Why not still suspect that it was he<span class="x" onmousemove="('comment',' The plaintiff. ');">⁵⁰</span> who sold them [in the market] and it was he<span class="x" onmousemove="('comment',' The plaintiff. ');">⁵⁰</span> himself who circulated the rumour? — Rab Judah said in the name of Rab: [We suppose that] e.g., people had entered his house and he rose in the middle of the night and called for help, crying out that he was being robbed. But is this not all the more reason for suspecting that he<span class="x" onmousemove="('comment',' The plaintiff. ');">⁵⁰</span> was merely looking for a pretext? — R. Kahana therefore completed the statement made in the name of Rab as follows: [We suppose] e.g., that a breach was found to have been made in his house and persons who lodged in his house were going out with bundles of articles upon their shoulders so that everyone was saying that so-and-so had had a burglary.<span class="x" onmousemove="('comment',' There is thus some circumstantial evidence to corroborate the plaintiff's allegations. ');">⁵¹</span> But still, there might have been there only articles, but not any books! — R. Hiyya b. Abba said in the name of R. Johanan: [We suppose] that they were all saying that books also were there. But why not apprehend that they might have been little books while he is claiming big ones? — Said R. Jose b. Hanina: [We suppose] they say, Such and such a book. But still they might perhaps have been old books while he is claiming new ones? — Rab<span class="x" onmousemove="('comment',' More correctly Abbahu as in MS.M. ');">⁵²</span> said: [We suppose] they were all saying that these were the articles of so-and-so and these were the books of so-and-so. But did Rab really say so?<span class="x" onmousemove="('comment',' V. p. 679. n. 4. ');">⁵³</span> Did Rab not say<span class="x" onmousemove="('comment',' Sanh. 72a. ');">⁵⁴</span> that if a thief entered a house by breaking in and misappropriated articles and departed with them he would be free,<span class="x" onmousemove="('comment',' From pecuniary liability. ');">⁵⁵</span> the reason being that he acquired title to them through the risk of life [to which he exposed himself]?<span class="x" onmousemove="('comment',' According to Ex. XXII, 1, and since at the time of breaking in the offence was capital, all civil liabilities merge in it; v. supra p. 192, n. 8. [Consequently the purchaser could not be forced to make restoration seeing that the thief himself is exempt.] ');">⁵⁶</span> — This last ruling that ownership is transferred applies only where the thief entered by breaking in, in which case he from the very outset exposed himself to the risk of being killed, but to those who lodged in his house, since they did not expose themselves to the risk of being killed, this ruling cannot apply. Raba said: All these qualifications apply only to a proprietor<span class="x" onmousemove="('comment',' Lit., 'house-owner'. ');">⁵⁷</span> who keeps his goods for sale, but in the case of a proprietor who does not keep his goods for sale,

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