A Tosefta (Bava Kamma 94b) discusses a repentant robber or usurer who tries to return the ill-gotten gains. One should not accept it from them, and if one does, the Sages are displeased with him. Rabbi Yochanan dates this Tosefta to (sixth-generation Tanna) Rabbi Yehuda HaNasi’s time—a brayta describes a thief who wished to repent; his wife said, “Empty one, if you repent, even your belt isn’t yours” so he refrained from repenting. The brayta concludes that at the time, they (the Sages) said … and then continues with the Tosefta’s text about repenting robbers and usurers.
This wording, בִּימֵי פלוני נִשְׁנֵית מִשְׁנָה זו, appears a few other times. In Shabbat 123b, a Tosefta states that initially, only three vessels may be moved on Shabbat: a knife for cutting a pressed-figs cake, a spork to clean a pot’s filth, and a small table knife. Over the years, they repeatedly permitted additional vessels until the last Mishnah where they said that all vessels may be moved except for a large saw and a plow blade. To this, the Amora Rabbi Chanina said that in the days of (biblical figure) Nechemiah ben Chachalia was this (initial restrictive law) taught, because Nechemiah 13:15 describes the Jews’ light treatment of Shabbat, and Nechemiah’s reaction.
In Bava Metzia 33a, a brayta teaches that studying Scripture is a partial virtue; studying Mishnah is a virtue and they receive reward; studying Gemara, there’s no greater virtue; and pursue study of Mishnah more than Gemara. The Talmudic Narrator wonders at the internal contradiction, for if Gemara has the greatest virtue, why run after studying Mishnah more1? As an answer, there’s Rabbi Yochanan’s statement: this brayta was initially taught in extolling study of Gemara, whereupon everyone abandoned Mishnah study. Then, Rabbi Yehuda HaNasi taught them to pursue study of Mishnah more.
In Horayot 13b, a brayta describes a procedure of standing in honor of the entrance of the Nasi (of the Sanhedrin), deputy Nasi, and Chacham. Rabbi Yochanan comments that this brayta was taught in the days of Rabban Shimon ben Gamliel II (Rebbe’s father). He was the Nasi, Rabbi Natan the deputy, and Rabbi Meir the Chacham. Thinking there should be a recognizable distinction between the honor accorded to him and others, he established these rules. This led to Rabbi Natan and Rabbi Meir unsuccessfully conspiring to depose him.
Finally, in Bechorot 30b, a brayta stated that one, even a Torah scholar, who wishes to accept upon himself chaver status (involving various ritual stringencies) must do so in the presence of three chaverim. An elder who sits in a yeshiva need not accept before three—he’s accepted it when he initially sat. (Fourth-generation Tanna) Abba Shaul said that even a Torah scholar needn’t appear before three, and others can accept it upon themselves in his presence.
Rabbi Yochanan notes that this was taught in the days of Rabbi Chanina ben Antigonus’ son. (fifth-generation Tannaim) Rabbi Yehuda and Rabbi Yossi, unsure about a ritual impurity matter, sent a delegation of Sages to him. He sat students from his own yeshiva next to the delegates (because he was afraid the delegates would touch and render his ritually pure items impure), then examined the matter. Upon hearing what happened—that he regarded the delegation as non-chaverim, Rabbi Yehuda said, “his father degraded Torah scholars, and he also degrades Torah scholars.” Rabbi Yossi responded in Rabbi Chanina ben Antigonos and son’s defense—since the Temple’s destruction, kohanim act with greater stringency for themselves in not passing pure items to anyone else.
Consistency?
Can we establish a consistent pattern from these data points? For instance, it is almost always Rabbi Yochanan2 who says this, so maybe we can say that his approach involves awareness that Halacha adapts in response to changing times, and that a practice in one generation doesn’t necessarily reflect earlier practice, and indeed might have only existed until that point. Similarly, most of these
Tosafot to our sugya in Bava Kamma grapples with whether בִּימֵי פלוני נִשְׁנֵית מִשְׁנָה זוֹ establishes only a terminus a quo (starting boundary) or also a terminus ad quem (ending boundary) for the halacha under discussion. Thus, Rabbenu Tam states that regarding Bava Kamma’s repentant robber and not taking back the stolen property, only in that Tannaitic generation did that law hold.
We might illustrate the question by pointing to the Vatican 108 manuscript of Shabbat. The scribe originally wrote מימי, “from the days of,” then scrubbed out the inside leg of the mem to turn it into a bet, “in the days of.”
Rabbenu Tam’s evidence that it was common practice to accept back from robbers, and judge cases involving robbery3. For example, in Bava Kamma 96b, someone robbed (גזל) a team of oxen from his fellow, plowed his field with them, sowed seeds with them and then returned the oxen. The victim came before Rav Nachman, who told him to estimate the value of the land’s enhancement, and seek that from the robber. (He took back the oxen, and sought the enhancement value in court.)
Similarly, in Bava Kamma 115a, a Nareshite stole a scroll which he sold to a Papunyan, who sold it to a Mechozan. They caught the thief, and Abaye ruled how to recompense each person in the chain. In Bava Metzia 5a, people regularly deposited animals with a shepherd. One day, he denied that he had received them, and witnesses testified that he had eaten two of them. Rabbi Zeira II said that the shepherd should swear about the remaining animals. In Bava Batra 33b, someone grabbed an ingot from his friend. The victim had one witness to the grabbing, but the grabber claimed he had snatched back his own item. The case came before Rabbi Ammi. Finally, usury was mentioned alongside robbery, and in Bava Metzia 61b, Rabbi Eleazar ben Pedat says that fixed interest can be retrieved from the lender’s possession through adjudication.
Rabbenu Yitzchak persuasively disagrees with Rabbenu Tam. He distinguishes between a long-standing robber/usurer, vs. one for whom it was a once-off. After all, the decree was to encourage repentance, and the language (הגזלנין ומלוי ברבית) implies this is their profession. Further, the repentant robber’s wife spoke of his losing everything. They dismiss another plausible distinction, between repentant vs. unrepentant robbers/usurers, based on features of the local sugya.
If so, Rabbenu Yitzchak wouldn’t need to establish the decree to Rabbi Yehuda HaNasi’s generation and no later. Meanwhile, Tosafot conclude, Rabbenu Tam is consistent in other sugyot (Shabbat, Bava Metzia, and Horayot) that the decree was restricted to that generation. They don’t elaborate, but perhaps Jews only treated Shabbat lightly in Nechemiah’s generation; only accorded Gemara primacy over Mishnah in Rebbe’s generation (though our generation is a counterexample) or had the Mishnah’s redactor in that generation; only had the fight for honor in Rabban Shimon ben Gamliel II’s generation; and, to add bechorot, only were concerned about insult to Tannaim in Rabbi Yehuda’s generation. Alternatively, I’m not convinced we require consistency across all sugyot in both terminus a quo and terminus ad quem.
Rabbi Dr. Joshua Waxman teaches computer science at Stern College for Women, and his research includes programmatically finding scholars and scholastic relationships in the Babylonian Talmud.
1 We could have suggested that despite the greater reward, one needs to establish a solid basis for Gemara study
2 It’s not problematic that the Shabbat sugya involves a different Amora, Rabbi Chanina. Still, without any manuscript evidence, I wonder whether an original רבי יוחנן transformed to רבי חנינא, with a yud repeating or being associated with the following word..
3 Judging cases of robbery seems different to me, as that isn’t a repentant robber, just a caught one, and involves a single case of theft, not general repentance and return of every item.
