Rav Chisda and Rabbinic Theft (article preview)

Two weeks ago, we considered Rav Shizvi and suggested that his rabbinic karet was no joke, but reflected his teacher Rav Chisda’s approach by which rabbinic law has standing on a Biblical level. A small piece of that discussion was Rav Chisda’s interpretation of Rabbi Yossi in a Mishnah, so we will now consider that sugya in greater detail.

The Mishnah (59a-b) declared various matters instituted because of darchei shalom, the ways of peace. A small subset of these are: (A) Animals, birds, and fish caught in traps are not technically acquired by the trapper merely being caught in the trap, until he takes physical possession, but they still prohibited someone from taking them because of darchei shalom. (B) Technically, a deaf-mute, imbecile and minor lack the intellect required to effect an acquisition, so if they find a lost item, someone else might grab the item from them, if not for darchei shalom. (C) Technically speaking, if a poor person gleaning olives atop an olive tree shakes the branches so that the olives fall to the ground, he hasn’t acquired them until he physically takes them in his hand, so someone else might grab them, if not for darchei shalom. For this subset (A, B, and C) Rabbi Yossi, a fifth-generation Tanna, argues that these are gezel gamur, absolute theft, rather than mere darchei shalom. 

This section of Mishnah is analyzed on Gittin 60b-61a. Three piskaot (A, B, C) appear. Piskaot are Geonic-era citations of the Mishnah which tell us which Amoraic or Savoraic statement accords with which portion of the Mishnah.