Bava Kamma 105b — the Talmud in English

If

swore

the robber

concerning it — concerning the leaven, which is not worth a peruta — that he had not robbed it, and admitted that he had lied in his oath,

concerning the leavened bread, which is not worth a peruta, that he did not rob it, and then admitted that he had lied in his oath,

what

is the law: is he obligated to bring an offering for an oath?

And the Gemara explains the sides of the uncertainty:

Do we say:

Although now he is obligated to him only for the leaven, which is not worth a peruta, and it is not property for which one becomes obligated, nevertheless

since, if it were stolen, he would have to pay him [if the leaven were stolen, he would have to pay him according to the time of the robbery, when it was worth a peruta], if so

[if the leavened food were stolen, he would have to pay him its value at the time of the robbery, when it was worth a peruta], if so,

he is denying property to him.

Or perhaps: now, at any rate, this is lying here [the leaven is lying here, and was not stolen],

[the leavened food is lying here and has not been stolen],

and it is mere dust [it is mere dust],

[it is nothing but dust],

and is he not denying property to him?

A matter about which Rava was uncertain is clear to Rabbah [a matter about which Rava was uncertain is obvious to Rabbah],

that he is obligated to bring an offering for an oath;

for Rabbah said:

One who says to his fellow: “

You stole my ox,”

and he

the defendant

says: “

I did not steal”;

the claimant returned and asked him: “If so,

what is its nature with you?”

and the defendant said to him: “

I am a gratuitous bailee over it,”

and swore to this and again admitted that he had lied, he is

obligated

the principal and the fifth —

And although he did not currently exempt himself from anything, since he admits that it is not his but belongs to the claimant, nevertheless he is obligated, for

he has exempted himself from theft and loss,

for which he is truly obligated, since he was the one who stole it.

And even if the defendant said: “

I am a paid bailee over it,”

and [said that] if it were stolen or lost he would be obligated to pay, nevertheless he is

obligated

because of an oath concerning a deposit,

for he has exempted himself from its breaking and death,

that is, from circumstances beyond his control, for which he is truly obligated, since he was the one who stole it.

And even if the defendant said: “

I am a borrower over it,”

and is obligated for its breaking and death, nevertheless he is

obligated, for he has exempted himself from death caused by work,

for which the borrower is exempt and the thief is obligated.

Evidently,

it is proven from Rabbah’s words that

although this one is standing [the ox is standing before us, and he did not deny it], nevertheless he is obligated according to Rabbah, and because in his view

[the ox is before us, and he has not denied possessing it], nevertheless he is liable according to Rabba. This is because, in his view,

since, if it were stolen, he would be denying property, now too

it is considered that he

is denying property.

Here too —

regarding one who robbed leaven and denied it — the law should be according to Rabbah, that he is obligated, because

although it is mere dust, since, if it were stolen, he would have to pay him proper property, now too he is denying property to him.

Rabbah sat and stated this teaching [Rabbah was sitting and stating his above ruling],

[Rabba was sitting and stating the ruling mentioned above].

Rav Amram raised an objection to Rabbah

from a beraita that we learned, in which it is taught that one who says, “I am a bailee over it,” and swears to this, is not obligated:

For it is taught: It is written in the passage concerning an oath regarding a deposit: “Or he found a lost item

and denied it

and swore falsely,” to teach:

excluding one who admits the principal

of the property, that it is not his, who is not obligated even though he denies the account of the matter;

how so:

He claimed against his fellow: “

You stole my ox,”

and he says “

I did not steal,”

and he again claimed against him: “

What is its nature with you?”

and he said to him: “

You sold it to me,”

or he said: “

You gave it to me as a gift,”

or he said: “

Your father sold it to me,”

or he said: “

Your father gave it to me as a gift,” [and below it explains why this is called one who admits the principal, although he claims, “It is mine”].

[and below the Gemara explains why this is called admitting the principal, even though he claims: “It is mine”].

Or the defendant said: “

I was running after my cow

the ox, and it entered my courtyard,” or he said: “

It came to me by itself

the ox,” or he said: “

I found it wandering on the road

and brought it to my house,” or he said: “

I am a gratuitous bailee over it,”

or: “

I am a paid bailee over it,”

or: “

I am a borrower over it” —

and swore

about these claims,

and

again

admitted

that he had lied, and in truth it was with him through theft,

might he be obligated,

therefore

the verse says: “

and denied it,”

excluding one who admits the principal,

of the property, that it is not his, who is not obligated.

Thus we have learned explicitly that although according to his claim he is not obligated for its circumstances beyond his control, nevertheless he is not obligated for it, and this is unlike Rabbah!?

He said to him

Rabbah to Rav Amram:

Empty-headed one [lacking understanding]!

[without understanding]!

When that was taught

that he is exempt, it was in a case where

he said to him: “

Here is your ox,”

and in this manner it is not applicable to say, “since, if it were stolen,” for it is before him and he takes it!

When I said

I [I did not say that he is obligated], it was in a case where

the ox was standing

the ox

in the pasture

when he said, “I am a bailee over it,” and there is concern that before he brings it from the pasture it may be stolen.

Here the Gemara returns to the beraita, in order to explain it:

And we raise an objection to that which is taught in the beraita, that one who says: “

You sold it to me [and likewise, “Your father sold it to me]” is exempt because he is one who admits the principal:

[and likewise, “Your father sold it to me”] is exempt because he admits the principal:

What

admission of the principal

is there in this?

And he claims, “It is mine”!?

And we answer:

It is necessary, that is, here we are dealing with a case where

the defendant

he said to him

the defendant: “Although it is acquired by me, nevertheless

I did not give you money [I or my father did not pay its value],

and

take your ox and go [take your ox and go].”

[take your ox and leave].

We further raise an objection: “

You gave it to me, your father gave it to me” —

as we learned in the beraita that he is exempt if he makes this claim —

what

admission of the principal

is there!?

And we explain: Here we are dealing with a case where

he said to him

the defendant: “Indeed, I received the ox as a gift, but

on the condition that I would give you satisfaction [on the condition that I would give you some gratification],

[on the condition that I would do something pleasing for you],

and I did not do it; take your ox and go [and I did not do it; take your ox and go].

[I did not do it; take your ox and leave].

We further raise an objection to what is explained in the beraita, that one who says to the one who claimed against him, “You stole my ox”: “

I found it wandering on the road,”

who is exempt because he is one who admits the principal: but

let

the claimant say to him: “

You should have returned it to me [you were required to return it to me],” and since you did not return it, there is no greater thief than you; and it follows that he is not denying anything at all, whereas the beraita explains that he is denying the theft, and is merely one who admits the principal, that it is not his property!?

You should have returned it to me

Said

he explained

the father of Shmuel:

The beraita is dealing

with

a case where he

says: “

An oath:

I found a lost item, and I did not know that it was yours, so that I should return it to you,”

and it follows that he is not a thief with regard to it.

One who administers an oath to witnesses that they should come and testify for him testimony that money is owed to him, and they denied it and said, “We do not know testimony concerning you,” and swore falsely to this — this is an “oath of testimony,” for which one who swears is obligated to bring an offering, an ascending and descending hattat; and there is no liability for this oath unless he knows “testimony concerning money” for his fellow, such as that he knows testimony that so-and-so owes him money, and the like.

It is taught: Ben Azzai said:

There are three oaths,

that is, you find three oaths concerning a witness who knows testimony for his fellow about a lost item that was lost from him, and denied that he knew any testimony concerning him, and swore falsely to this; and below it explains whether he is obligated or exempt through these oaths.

1.

He recognized it [the lost item]

[the lost object]

but not its finder,

that is, he claimed against his witness that he should testify for him about a particular lost item that it was his, and he denied under oath and said, “I do not know testimony concerning you”; and it follows that he saw his lost item moving in another person’s domain, but does not know who the owner of that domain is.

2. The witness recognized

its finder but not it,

that is, it follows that this witness knows about a person who found a lost item resembling the one that was lost from this person, but does not know that this is that person’s lost item.

3.

Neither it nor its finder,

and he proceeds to explain it.

And we are astonished: If he

did not

recognize

it and did not

recognize

its finder,

then he knows no testimony at all that could assist him in finding his lost item; and when he said, “I do not know testimony concerning you,”

he swore the truth [it is an oath of truth], so what is there to discuss here at all!?

[it is a true oath]. What is there to discuss at all!?

And we answer:

Say:

he recognized

it and its finder,

that he knows testimony about a certain person who found this person’s lost item.

And we explain:

For what halakhic purpose?

That is, what is the law of these three oaths? Is he obligated for them or exempt from bringing an offering for an oath of testimony? And the amoraim disputed the matter:

Rav Ami said in the name of Rabbi Hanina:

These three oaths are

to exempt,

for even if he testifies, this person will not become obligated to pay money, since even if he recognized it and its finder, perhaps this person will claim that it was taken from him by force.

And Shmuel said:

These three oaths are

to create liability

for an offering for an oath of testimony.

And

we explain: The dispute of the amoraim depends

on the dispute of these tannaim, for it is taught:

One who administers an oath to one witness

that he should come and testify for him testimony concerning money and obligate the defendant to swear:

He is

exempt — the words of the first tanna.

But Rabbi Elazar, son of Rabbi Shimon, says: He is liable

And Rabbi Elazar son of Rabbi Shimon: He is liable,

because the claimant can make the defendant swear through his testimony, and perhaps he will not swear falsely, and it will follow that he becomes obligated to pay money.

And we explain:

In what do

the first tanna and Rabbi Elazar son of Rabbi Shimon

disagree? One —

Rabbi Elazar son of Rabbi Shimon —

holds: A matter that causes monetary liability is considered like property;

and therefore, although he can swear and be exempt, nevertheless it is a “cause of monetary liability,” for perhaps he will not swear.

And the other —

the first tanna —

holds: “

A matter that causes monetary liability

is not considered like property,”

and since he can swear and be exempt, the witness who denied this testimony is not liable.

For this reason the amoraim disputed the three oaths concerning a lost item, whether he is liable:

Shmuel, who holds him liable, does so because in his view “a matter that causes monetary liability is considered like property”; and if he testifies that he saw the lost item in a certain person’s place, the loser can ascertain who is the owner of that place; and all the more so when he recognized its finder but not it; and all the more so when he recognized it and its finder.

And Rabbi Hanina exempts: Because even when he recognized it and its finder, perhaps that certain person will claim that it was taken from him by force, and he will not come to monetary liability; and all the more so when he recognized it but not its finder, or its finder but not it, for this is no more than a “cause of monetary liability,” and therefore he is exempt.

Rav Sheshet said:

One who denies a deposit,

even without an oath and admission, but rather he denied it and witnesses came that it belongs to the depositor,

the

depositary

becomes a robber with regard to it, and is obligated for circumstances beyond his control

like a robber.

And a tanna teaches likewise:

For it is taught: It is written in the passage concerning an oath regarding a deposit: “Or he found a lost item

and denied it

and swore falsely, and he shall return the robbery that he robbed ...”;

we have learned the punishment,

for the Torah said: “And he shall return the robbery,” and the Torah punished him, so that he is obligated for circumstances beyond his control like a robber, for the deposit that was deposited with him —

From where is the warning?

The verse says: “

You shall not deny

a man to his fellow.”

Is it not

that the punishment — “and he shall return the robbery” -

stated here is

a punishment

for the

denial,

and even when he did not swear, we have learned that one who denies a deposit becomes a robber with regard to it?

And we reject this:

No,

not as you explained it, that the punishment — “and he shall return the robbery” — is for the denial alone, but:

The punishment — “and he shall return the robbery” — is for the

oath

oath

that he swore falsely, and the Torah did not say that one who denies a deposit becomes obligated to return the robbery and is liable for circumstances beyond his control except when he swore concerning it; but when he did not swear, this cannot be learned from here.

And we raise an objection to this:

But since the latter clause teaches

of that beraita

that he swore, it follows that the first clause

even

did not swear!?

For

this

latter clause teaches:

It is written, “

and swore falsely,”

we have learned: punishment [that is, the principal and the fifth],

[meaning payment of the principal and an additional fifth];

from where is the warning? The verse says: “

and

you shall not deal falsely

a man to his fellow.”

And since the latter clause

deals

with his having sworn,

it follows:

the first clause deals with his not having sworn,

and if so it is proven that he became obligated through “and he shall return the robbery” when he denied a deposit, in accordance with Rav Sheshet’s words.

The members of the academy said:

Both this and that

Both this and that [the first clause and the latter clause] deal only with

[the first clause and the latter clause] deal only with

his having sworn,

and the distinction between them is:

Here —

the latter clause — in a case where he

admitted.

Here —

the first clause — in a case where

witnesses came.

And the Gemara explains: If

they came [they came],

[witnesses came],

he is obligated for circumstances beyond his control,

and this is what we learned in the first clause: “We have learned the punishment.”

And if

he indeed admitted [he admitted]:

[he admitted],

he is obligated for the principal, the fifth, and the guilt-offering ,

and this is what we learned in the latter clause: “We have learned the punishment.”

Rami bar Hama raised an objection

to Rav Sheshet’s words from a Mishna in the chapter “All Who Swear,” where it mentions among the other oaths that the claimant is the one who swears and takes: “The one opposite him is suspected concerning the oath,” that is, a defendant who became obligated to swear and is suspected of a false oath, in which case the Sages transferred the oath to the claimant, so that he would swear and take; and the Mishna explains:

And the one opposite him is suspected concerning the oath, how so,

that is, how does he become suspected concerning the oath?

One

who lies in

an oath of testimony,

and one

who lies in

an oath concerning a deposit, and even

if he swore

a vain oath,

that is, even if he lied in an oath that does not involve denying money owed to his fellow.

And we challenge from what we learned: “And one in the oath of the deposit” against Rav Sheshet, for it implies that one who denies a deposit is not disqualified from an oath, but only when he swears falsely:

And if it is so

according to Rav Sheshet, that one who denies a deposit, even without an oath, becomes a robber, then

through denial

alone

he is disqualified

[he is disqualified] from an oath, for he is a robber, and a robber is disqualified from an oath!?

They said

the members of the academy:

Here

in that Mishna

in what are we dealing: that it was standing

the deposit

in a marsh

at the time of the denial,

for it is not a denial

to disqualify him through it from an oath, and because

that

one can say:

he reasoned

the one who denied:

“I am evading him until I go and bring it”

[I am evading the claimant falsely, until I bring the deposit from the marsh], and this is not a robber; and Rav Sheshet’s words were stated only in a case where witnesses came that the deposit was in his possession at the time of the denial.

And the Gemara supports its reasoning, that wherever it is possible to say “I am evading him,” he is not disqualified:

Know this,

that wherever it is possible to say, “I am evading him,” this is what they say,

for

indeed

Rav Idi bar Avin said: One who denies a loan

is

fit for testimony;