Bava Kamma 104b (קד:) — the Talmud in English

No money is sent by means of a diukanei, even if witnesses signed it,

meaning: even if the owner of the deposit gave his agent identifying signs, or wrote his seal for him in a letter, gave it to him, and said: “Go and show it to so-and-so, and he will give you money that he has in his possession,” nevertheless, the money may not be sent with him. And if he did give it to him and it was lost through an unavoidable accident while in his possession, the sender is not exempt from his debt.

And Rabbi Yoḥanan said: If witnesses signed it, the money may be sent.

They said

the members of the academy:

According to Shmuel, what remedy is there

—how can he give it to an agent and be exempt?

And they said: If he would perform

such a

deed:

Rabbi Abba was owed

money by Rav Yosef bar Ḥama

—he was demanding money from Rav Yosef bar Ḥama—

Rabbi Abba said

Rabbi Abba

to Rav Safra:

“When you come, bring it to me”

—when you come here from there, bring my money with you.

When

Rav Safra

went there, his son said to him

—Rava, the son of Rav Yosef—

“Did he write you

‘I have received it’?”

That is, did Rabbi Abba place in your hand a document in which he wrote that by your receiving the money, it is as though he himself had received it?

Rav Safra said

Rav Safra said to Rava:

“He did not”

write me, “I have received it”!

He said to him:

“If so, go first and have him write you

‘I have received it’”

—go first and bring a document in which he writes this, and then we will give you the money; for otherwise, if the money is lost through an unavoidable accident while in your possession, we will become obligated to pay again.

Ultimately, Rava said to him

Rava said to Rav Safra:

“Even if he also writes you

‘I have received it’”

—even if he writes you, “I have received it”—

“it is of no consequence;

because

perhaps, before you arrive, Rabbi Abba will die, the money will fall into the hands of his orphans, and

‘I have received it’

from Rabbi Abba will be of no consequence,”

that is, perhaps Rabbi Abba will die between the time he writes it and the time you come to us, and his heirs will demand the money from us. His agency would not be effective to exempt us from liability for an unavoidable accident when we hand the money to you.

Rav Safra said

Rav Safra said to Rava:

“Then what remedy is there,

what is the way to make me an agent?”

Rava said to him:

“Go, and let him acquire it for you through land,”

go back to Rabbi Abba, so that he will acquire for you the money in our possession through an acquisition made incidentally to land,

“and come and write for us

‘I have received it’”

—and come to us and write for us, “I have received it”—and

such a

deed occurred with

Rav Pappa,

who

was owed twelve thousand dinars by the people of Bei Ḥozai

—they owed him twelve thousand dinars—

he transferred them to Rav Shmuel bar Abba through the threshold of his house

—Rav Pappa transferred his money to Rav Shmuel bar Abba through the acquisition of the threshold of the house—

and when he came, he went out to greet him as far as To’akh

—when Rav Shmuel returned with the money, Rav Pappa went out to greet him as far as the place called To’akh, because he was happy that he had brought him his money.

We learned in the Mishna:

“If he gave him the principal”

but did not give him the additional fifth ... he need not pursue him:

And the Gemara infers:

Apparently,

it is evident from the fact that the tanna had to teach us that he need not pursue him in order to give him the additional fifth:

The

fifth—

which the person who took the oath must pay to the owner of the money—

is monetary;

and since the robbed party has money in the robber’s possession, one might have said that he must pursue him in order to give it to him—

And

the practical difference of the fact that the fifth is monetary is that

if he dies

the father who became obligated to pay the fifth,

the heirs pay it

from the real estate that he left in their possession—

and we also learned

that the fifth is monetary from what we learned in our Mishna:

“He gave the principal”

for which he became obligated because of his oath, and then

took an oath

falsely

concerning the fifth

for which he became obligated, claiming that he had already paid it, and admitted that the oath had been false;

behold,

he

adds a fifth

because of his second oath

on

the

fifth

for which he became obligated through the first oath—

Apparently,

it is evident from here as well that

the fifth is monetary,

and one is liable for denying it under oath for both the principal and the fifth, as with any other money that he denied owing him.

And it was taught

in a beraita

also as follows,

that the fifth is monetary—

For it was taught:

One who robs another and takes an oath to him

falsely concerning the robbery,

and dies,

the one who took the oath having died,

his heirs

of his

pay the principal and the fifth

from his property,

but are exempt from the guilt-offering.

This beraita too proves that the fifth is monetary.

And we challenge the beraita:

And

do

the heirs indeed become liable to pay their father’s fifth

—are the heirs truly obligated to pay the fifth to which their father became liable!?

And we contrast it

with a beraita that contradicts this, in which we learned:

If Scripture had stated, in the passage concerning the oath of a deposit, only, “And he shall restore the robbery that he robbed,” teaching that a son does not pay a fifth for his father’s robbery, since he was not the one who robbed,

I would still say: When does he not pay a fifth for his father’s robbery? When neither he

the son

nor his father took an oath,

or even if

he

took an oath and

his father did not;

but if

his father

took an oath and even

he did not

take an oath,

or even if he

and

his father

both

took an oath, from where do we know

that even in these cases the son does not pay a fifth—

Therefore,

the verse states:

“that he robbed and that he extorted,”

that is, “And he shall restore the robbery that he robbed or the extortion that he extorted,”

and he

the son

did not rob or extort.

We have thus learned that even if the father took an oath, the son does not pay a fifth, and he is not required to pay it from the assets his father left him. But this is difficult according to the beraita that states that the heirs pay their father’s fifth!?

Rav Naḥman said: It is not difficult

to reconcile the two beraitot, because:

Here—

the beraita that obligates the heirs to pay the fifth—deals with a case in which

he admitted

during his lifetime that he had taken a false oath, and the heirs must pay, since the father had already become liable for the fifth during his lifetime.

Here—

the beraita that exempts the son from paying a fifth for his father’s false oath—deals with a case in which

he did not admit

during his lifetime that he had taken a false oath, and he did not become liable for the fifth while he was alive.

The Gemara had thought that the exemption referred to a case in which the father did not admit and the son also did not admit, and therefore it asks:

If he did not admit,

then how do we know that he took a false oath? And even

does he not pay the principal either!?

And if you would say

perhaps you would say:

It is indeed so, that he does not pay

—it is indeed true that he does not even pay the principal—this cannot be said, for:

But since he returns to discuss the fifth, it follows that he pays the principal

—since the tanna mentioned only that the son is exempt from the fifth, it follows that he does pay the principal. The question therefore returns: if the beraita is dealing with a case in which he did not admit, why does he pay the principal!?

Furthermore,

there is proof that he pays the principal at the beginning from the fact that

it was taught

at the end of that beraita that he pays the principal, implying that he also pays the principal at its beginning:

For it was taught at the end of that beraita:

“I would still say:

When does he pay the principal for his father’s robbery? When both he and his father took an oath—

but if

his father did and he did not,

or even if

he did and his father did not,

or even if

neither he nor his father did—

from where

do we know that the son is liable to pay the principal for his father’s robbery—

Therefore,

the verse states: ‘Robbery and extortion, lost item and deposit,’

these are all the items enumerated in the passage concerning the oath of a deposit, which he denied and concerning which he took an oath:

‘There is a teaching’

—and it proceeds to explain it.

And Rav Huna was sitting and reciting this teaching,

that is, Rav Huna was teaching the aforementioned beraita to his son:

He

asked

his son

—Rabba, his son—:

Does the Master mean

“there is a teaching”

in the verse,

meaning that it is derived from Scripture, from the fact that the Torah mentioned all these cases,

or

perhaps

“they will be paid”

is being said based on logical reasoning,

does the Master mean?

He said to him,

Rav Huna said to his son:

“I mean ‘there is a teaching’

in the verse, and I derive it from the additions in the verses”

—my intention was to derive from the verse that liability applies in this case as well.

Thus, at the end of the beraita he pays the principal, and the same applies at its beginning. Consequently, the son must at least have admitted; for otherwise he would not pay the principal. How then did you say that the beraita deals with a case in which he did not admit!?

Rather,

the Gemara explains Rav Naḥman’s statement, in which he interpreted the beraita as referring to a case in which he “did not admit”:

What is the meaning of

“he did not admit,”

as stated by Rav Naḥman?

His father did not admit

and therefore did not become liable for a fifth, and consequently the son does not pay a fifth,

but

he

his son admitted,

and therefore he pays the principal.

And we challenge what we learned in the beraita: “If both he and his father [took an oath], from where do we know that the son does not pay a fifth? The verse states ...”:

“Let us obligate his son to pay a fifth for his own oath,”

since he himself denied money belonging to another that was in his possession as part of his inheritance from his father!?

They said

the members of the academy, explaining the beraita:

What are we dealing with here?

With a case in which the robbery is no longer extant

in the son’s possession. And even though they “inherited” the robbery from their father, they are not responsible for it, since they are not the robbers; therefore, even if they took an oath, saying, “We did not inherit your object from our father,” and this is false, it is only an oath of utterance, for which one is not liable for a principal and a fifth.

And the Gemara challenges this:

If

the beraita is dealing

with a case in which the robbery is no longer extant, the son should not pay even the principal,

whereas it has already been explained that the son is liable to pay the principal!?

And it answers:

No, it is necessary; the case is one in which

there is liability attached to the assets. That is, the beraita deals with a case in which their father left assets securing the debt, meaning that they inherited land from him. In such a case, if their father bequeathed the robbery to them and it was subsequently lost, they must pay the debt of their father from those lands.

Therefore, they are indeed liable for the principal; however, they are not liable for the fifth, as the reason is explained below.