Bava Kamma 103b (קג:) — the Talmud in English

He must pay a fifth on the fifth,

because the first fifth becomes principal, and when he denies it and takes an oath concerning it, he must pay a fifth.

until the principal,

that is, the fifth concerning which he took the oath,

is reduced below the value of a peruta.

For one who takes an oath denying an amount worth less than a peruta does not pay a fifth.

And likewise with regard to a deposit,

which the guardian denied having received and concerning which he took an oath: he pays the principal and a fifth,

as it is stated

Leviticus 5]:

“Or concerning a deposit or a loan”,

which he denied having received as a loan,

“Or concerning robbery, or he oppressed his fellow”,

in the wages of a hired laborer,

“Or he found a lost article, denied it, and took a false oath.”

He must pay the principal and a fifth, and

he is liable to bring a sacrifice,

an asham.

Gemara:

From the Mishna’s statement, “If he took an oath to him, he must transport it after him even to Mede,” it follows that

if he took an oath, yes—

only then does he lack atonement until it reaches the robbed party’s possession—but

if he did not take an oath,

the robber

is not

required to transport it to him; rather, it is sufficient for him to place it there, and the robbed party may take it himself.

We raise an objection:

whose opinion is this?

The law of the Mishna is

neither according to

the opinion of

Rabbi Tarfon nor according to

the opinion of

Rabbi Akiva.

For it was taught in a beraita: If one robbed one person from

among

five

people,

and he does not know from which of them

he robbed,

and each

of them

says, “He robbed me,” he places the stolen property between them and withdraws; these are the words of Rabbi Tarfon.

Rabbi Akiva says: This is not the manner by which he can extricate himself from the transgression,

and he does not achieve atonement through this,

until he pays the stolen property to each and every one.

Because the obligation is to return the stolen property to the robbed party himself; therefore, by placing the stolen property between them, he does not discharge his obligation, since it has not reached the robbed party’s possession, and he remains subject to a doubtful obligation until he gives it to all of them.

If so, the Mishna—

whose opinion is it?

according to whose opinion does it hold?]

If it is according to Rabbi Tarfon,

the Mishna cannot be understood in that way, since

even though

the robber

says, “He places the stolen property between them and withdraws.”

Even though the stolen property will not reach the robbed party’s possession, he is discharged through this, whereas the Mishna states: “He must transport it after him even to Mede.”

If it is according to Rabbi Akiva,

our Mishna cannot be understood in that way, since

even though

the robber

says

that he is not discharged

until he pays the stolen property to each and every one.

Yet we inferred from the Mishna that this law applies only when he took an oath. If so, according to whom is our Mishna?

We answer:

Actually, it is according to Rabbi Akiva; and when Rabbi Akiva says, “Until he pays the stolen property to each and every one,”

that means specifically

where the robber took an oath

the robber

is what he says—

that he is not discharged by placing the stolen property between them.

What is the reason?

For the verse states

Leviticus 5]:

“To the one to whom it belongs”

that is, the robbed party,

“he shall give it on the day of his guilt.”

After confessing following his oath of denial, he must give it into the robbed party’s possession.

And Rabbi Tarfon

also agrees with the basic law that if he took an oath, he is discharged only by returning the property to the robbed party himself. But in this case, where he robbed one of five and does not know whom he robbed,

even though he took an oath, the Sages instituted an enactment

so that he would not refrain from repenting; they leniently ruled that placing the stolen property is sufficient, just as they ruled leniently that when the robbed party is not present in the place, he may give it to an agent of the court.

For it was taught in a beraita: Rabbi Elazar ben Rabbi Tzadok says: The Sages instituted a great enactment,

when the robbed party is far from the robber’s location,

that if the expense

required in order to reach him

is greater than the principal,

the Sages exempted him from transporting the stolen property to the robbed party; rather,

he pays the principal and a fifth to the court,

until the robbed party comes to take it,

and he brings his asham and achieves atonement,

even though the stolen property has not yet reached the robbed party’s possession. Similarly, they instituted that in a case of doubt, when he does not know whom he robbed, he places the stolen property between them and withdraws.

And Rabbi Akiva

holds that there is no proof from the beraita concerning our case, because

when the Sages instituted an enactment, it was in a case where he knows whom he robbed,

they were lenient in allowing him to place the property now in the court, even though it had not reached the robbed party’s possession, because

he is returning the money to its owner, [in the end, the money will reach its owner].

[in the end, the money will reach its owner].

But when he robbed one of five, since he does not know whom he robbed,

and it is possible

that the money will not return to its owner

if he does not pay each and every one, and perhaps he will not fulfill the obligation of returning the property at all,

the Sages did not institute an enactment

in this case.

Rav Huna bar Yehuda raised an objection,

we learned in the Tosefta:

Rabbi Shimon ben Elazar said: Rabbi Tarfon and Rabbi Akiva did not disagree concerning one who purchased from one of five people and does not know from which of them he purchased;

all agree in this case

that he places the purchase price between them and withdraws.

Because this is merely a monetary uncertainty, and the burden of proof rests upon the claimant.

With regard to what did they disagree?

Concerning the case

where he robbed one of five people and does not know from which of them he robbed; Rabbi Tarfon says: He places the value of the stolen property between them and withdraws.

And Rabbi Akiva says: He has no remedy

to discharge the obligation to return the stolen property,

until he pays the stolen property to each and every one.

And if it should enter your mind

that Rabbi Akiva disagrees only in a case

where

the robber took an oath concerning his denial,

what difference is there whether he purchased

and took an oath concerning the denial,

or whether he robbed

and took an oath? Since the obligation to return the property is the same in both cases, once he denied and took an oath concerning it, as explained in the previous Mishna, it necessarily follows that they also disagreed when he did not take an oath, and that the uncertainty concerns the robbery itself, contrary to the Gemara’s answer.

Rava further raised an objection: There was an incident involving a certain pious man who purchased from two people and did not know from which of them he had purchased. He came before Rabbi Tarfon, who said to him,

Rabbi Tarfon:

“Place the value of your purchase between them and withdraw.”

He came before Rabbi Akiva, who said to him: “You have no remedy until

you pay each and every one.”

And if it should enter your mind that he had taken an oath

concerning the denial, and that this was the matter of their dispute, it is difficult: How could a person described as

pious take a false oath?

And if you would say that he took an oath

after first denying it,

and afterward became pious

when he repented,

but

we have a principle that

whenever we say, “There was an incident involving a certain pious man,”

that pious man was

either Rabbi Yehuda ben Bava or Rabbi Yehuda ben Rabbi Ilai, and

indeed

Rabbi Yehuda ben Bava and Rabbi Yehuda ben Rabbi Ilai were pious from the outset.

It is certainly impossible to say that they denied the claim and took a false oath. It follows from this beraita that they disagreed even when he did not take an oath concerning his denial, which contradicts the Gemara’s answer. We answer:

Rather, actually

our Mishna

is according to Rabbi Tarfon,

because according to Rabbi Akiva, even when he did not take an oath, he must return the stolen property to the robbed party himself.

And Rabbi Tarfon agrees that where he took an oath,

he pays the stolen property to each and every one, because of the obligation to return it,

What is the reason? For the verse states: “To the one to whom it belongs he shall give it on the day of his guilt.”

And Rabbi Akiva,

who disagrees, holds:

even though he did not take an oath, he is penalized.

The Sages penalized him for his robbery.

We raise a difficulty:

And Rabbi Tarfon—

how can his words be explained as meaning that if the robber took an oath, he pays each and every one because of the oath?

After all, wherever he takes an oath, he inevitably confesses.

For when he takes an oath, he is not yet liable for the principal and a fifth until he confesses; beforehand, he bears only the obligation of a robber who did not deny the claim. Once he confesses,

why mention that he took an oath?

Why does our Mishna need to state the law that “he must transport it after him even to Mede” specifically with regard to one who took an oath?

Even without an oath as well,

Rabbi Tarfon holds that if he confesses, he pays each and every one.

For it was taught in a beraita: Rabbi Tarfon agrees in the case of one who says to two people, “I robbed one of you of one hundred dinars, but I do not know

which of you it was”; he gives one hundred dinars to this one and one hundred dinars to that one.