Bava Kamma 103b — the Talmud in English

He pays a fifth upon a fifth,

for the first fifth becomes principal, and when he denies it and takes an oath concerning it, he is liable to pay a fifth.

Until the principal is reduced—

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

to the value of a peruta.

For one who takes an oath concerning the denial of less than the value of a peruta does not pay a fifth.

And likewise with a deposit,

which the guardian denied and took an oath concerning it, he pays principal and a fifth,

as it is stated [Leviticus 5]:

Leviticus 5,

“Or with a deposit or with a pledge”

[which he denied concerning a loan],

“or through robbery or he oppressed his fellow”

[concerning the wages of a hired worker],

“or he found a lost item and denied it and took a false oath.”

He pays principal and a fifth, and

is liable for an offering of

guilt.

Gemara:

From what they said in the Mishna, “He took an oath to him,” he shall take it after him to Media, it is implied:

If he took an oath, yes,

only then does he lack atonement until it reaches the hand of the robbed party; but

if he did not take an oath,

the robber

does not

have to take it to him, but it is sufficient that he leave it and the robbed party take it himself.

And we raise a difficulty:

Whose

is the law of the Mishna?

Not

according to the view of

Rabbi Tarfon, and not

according to the view of

Rabbi Akiva.

For it was taught: If one robbed one from

among

five

people,

and he does not know from which of them

he robbed,

and each one

of them

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

Rabbi Akiva says: This is not the way to remove it from his hand of transgression,

and he does not attain atonement through this,

until he pays the robbed item to each and every one.

Because the obligation is to return the robbed item to the robbed party himself; therefore, by leaving the robbed item between them he is not released from his obligation, for it has not reached the hand of the robbed party, and he remains in a state of doubtful obligation until he gives it to all of them.

And if so, our Mishna—

whose

[view does it follow]?

If it is according to Rabbi Tarfon,

it is impossible to establish the Mishna, since

even though he took an oath

the robber,

he says, “He places the robbed item between them and withdraws.”

And although the robbed item will not reach the hand of the robbed party, he is released through this, whereas in the Mishna it is stated, “He shall take it after him to Media.”

If it is according to Rabbi Akiva,

it is impossible to establish our Mishna, since

even though he did not take an oath

the robber,

he says

that he is not released

until he pays the robbed item to each and every one,

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

And we answered:

Actually, it is Rabbi Akiva, and when Rabbi Akiva says, “until he pays the robbed item to each and every one,”

that is specifically

where he took an oath,

the robber,

that he says

that he is not released by leaving the robbed item between them.

What is the reason?

For the verse says [Leviticus 5]:

Leviticus 5,

“To whom it belongs

[that is, the robbed party]

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

After confessing following the oath of denial, he is liable to give it into the hand of the robbed party.

And Rabbi Tarfon

also concedes to the essential law that if he took an oath, he is released only by returning it to the robbed party himself. But in this case of one who robbed one from five, since he does not know whom he robbed,

even though he took an oath, the Sages enacted a remedy,

so that he would not refrain from repenting, and they were lenient with him, so that leaving the robbed item is sufficient, just as they were lenient that when the robbed party is not found in the place, he may give it to an agent of the court.

For it was taught: Rabbi Elazar son of Rabbi Tzadok says: They enacted a great remedy,

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

that if the expense

required in order to reach him

is greater than the principal,

the Sages exempted him from taking the robbed item to the robbed party; rather,

he pays principal and a fifth to the court,

until the robbed party comes to take it,

and he brings his guilt-offering and it effects atonement for him,

although the robbed item has still not reached the hand of the robbed party. And likewise they enacted, in a case of doubt when he does not know whom he robbed, that he places the robbed item between them and withdraws.

And Rabbi Akiva,

holds that there is no proof from the beraita for our issue, because

when the Sages enacted a remedy, it was where he knew whom he had robbed,

they were lenient that he should now place it in the court, even though it had not reached the hand of the robbed party, because

he is returning the money to its owner,

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

But if he robbed one from five, where he did not know whom he had 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 return at all,

the Sages did not enact a remedy

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 took from one of five and does not know from which of them he took,

and all agree in this matter

that he places the money of the purchase between them and withdraws.

Because here there is only a monetary doubt, and the one who seeks to extract from his fellow bears the burden of proof.

Concerning what did they disagree?

Concerning a case

where he robbed one from five people, and he does not know from which of them he robbed, for Rabbi Tarfon says: He places the money of the robbed item between them and withdraws.

And Rabbi Akiva says: He has no remedy

to be released from the obligation of returning the robbed item,

until he pays the robbed item to each and every one.

And if it enters your mind

that Rabbi Akiva disagrees only in a situation

where he took an oath

the robber concerning his denial,

what difference is it to me that he took

and took an oath concerning the denial,

what difference is it to me that he robbed

and took an oath? Behold, in both of them the obligation of return is equal, since he denied and took an oath concerning it, as explained in the Mishna above. Necessarily, they disagreed even when he did not take an oath, and the doubt is concerning the robbery itself, and not as the answer of the Gemara?

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

Rabbi Tarfon:

“Place the money 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 enters your mind that he took an oath

concerning the denial, and this is what they disagreed about, it is difficult: a person described as

pious—would he take a false oath?

And if you would say that he took an oath

after he denied,

and afterward became pious

when he repented.

But

it is an established principle for us:

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

this pious man is

either Rabbi Yehuda ben Bava or Rabbi Yehuda son of Rabbi Ilaai, and

behold,

Rabbi Yehuda ben Bava and Rabbi Yehuda son of Rabbi Ilaai were pious from the outset,

and it is certainly impossible to say that they denied and took a false oath. And it is demonstrated from this beraita that they disagreed even when he did not take an oath concerning his denial, and from here there is a contradiction to the answer of the Gemara? And we answered:

Rather, actually,

our Mishna

is Rabbi Tarfon,

for according to Rabbi Akiva, even when he did not take an oath, he is liable to return the robbed item to the robbed party himself.

And Rabbi Tarfon concedes where he took an oath,

that he pays the robbed item to each and every one, because of the obligation of return.

What is the reason? For the verse says: “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.

For the Sages penalized him for his robbery.

And we raise a difficulty:

And Rabbi Tarfon,

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

Since, where he takes an oath, it is impossible that he does not confess.

For when he takes an oath, he is still not liable for principal and a fifth until he confesses; but beforehand he has only the obligation of return of a robber who did not deny. And once he confessed,

why specifically “and took an oath”?

What need is there for our Mishna to write the law that “he shall take it after him to Media” concerning one who took an oath?

Even without an oath as well,

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

For it was taught: Rabbi Tarfon concedes concerning one who says to two: “I robbed one of you of a maneh, and I do not know

which of you; he gives one maneh to this one and one maneh to that one,”