Bava Kamma 105b (קה:) — the Talmud in English

If

the robber swore

the robber

concerning it

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 halakha? Is he obligated to bring an offering for a false oath?

The Gemara explains the sides of the uncertainty:

Do we say:

Although at present he owes him only the leavened bread, which is not worth a peruta and is not considered property for which one can become liable, nevertheless,

since, if it were stolen, he would have to pay him

[if the leavened bread 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 a monetary obligation.

Or perhaps: At present, in any event, it is lying here

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

and it is merely dust

[it is merely dust],

so is he not denying a monetary obligation?

That which Rava considered uncertain was obvious to Rabba

[that he is liable to bring an offering for a false oath];

as Rabba said:

If one says to another: “

You stole my ox,”

and he

the defendant

says: “

I did not steal it”;

the claimant then asks him: “If so,

what is it doing in your possession?”

and the defendant says to him: “

I am an unpaid bailee for it,”

and he swears to this and then admits that he lied, he is

liable

for the principal and the one-fifth payment—

Although he did not presently exempt himself from anything, since he admits that it does not belong to him but to the claimant, nevertheless he is liable, because

he exempted himself from liability for theft and loss

for which, in truth, he is liable, since he was the one who stole it.

And even if the defendant said: “

I am a paid bailee for it,”

meaning that if it were stolen or lost he would be liable to pay, nevertheless he is

liable

on account of the oath concerning a deposit,

because he exempted himself from liability for breakage and death

that is, from liability for unavoidable circumstances, for which in truth he is liable, since he was the one who stole it.

And even if the defendant said: “

I am a borrower of it,”

and is liable for breakage and death, nevertheless he is

liable, because he exempted himself from liability for death resulting from the work

for which a borrower is exempt, whereas a robber is liable.

It follows

that it is proven from Rabba’s statement that

although it is standing here

[the ox is standing before us, and he did not deny its ownership], nevertheless, according to Rabba he is liable, because in his view:

since, if it were stolen, he would be denying a monetary obligation, now too

it is considered that he

is denying a monetary obligation.

Here too—

with regard to one who robbed leavened bread and denied it—the halakha should be, according to Rabba, that he is liable, because:

although it is merely dust, since, if it were stolen, he would have to pay him proper money, now too he is denying a monetary obligation.

Rabba was sitting and stating this halakha

[Rabba was sitting and stating the ruling mentioned above], when

Rav Amram raised an objection to Rabba

from a beraita in which we learned that one who says, “I am a bailee for it,” and swears to that effect, is not liable:

As it is taught: It is written in the passage concerning the oath relating to a deposit: “Or he found a lost item

and denied it

and swore falsely.” This teaches:

excluding one who admits the principal

the property does not belong to him, who is not liable, even though he denies the details of the story

How:

He claimed against another: “

You stole my ox,”

and he says: “

I did not steal it,”

and he again claimed against him: “

What is it doing in your possession?”

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

Or the defendant said: “

The ox ran after my cow

and entered my courtyard,” or he said: “

It came to me on its own

the ox,” or he said: “

I found it lost on the road

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

I am an unpaid bailee for it,”

or: “

I am a paid bailee for it,”

or: “

I am a borrower of it”—

And he swore

to these claims

and

then

admitted

that he had lied and that in fact he had it by theft,

might he be liable

therefore

the verse states: “

And denied it,”

excluding one who admits the principal

the property does not belong to him, who is not liable.

We have explicitly learned that although according to his claim he is not liable for unavoidable circumstances, nevertheless he is not liable for it—contrary to Rabba!?

He said to him

Rabba said to Rav Amram:

Tedora

[empty-headed one]!

When that teaching was taught

that he is exempt, it was in a case where

he said to him: “

Here,”

returning your ox to you. In such a case, it is inapplicable to say, “Since, if it were stolen,” since it is before him and he can take it!

When I spoke

I did not say that he is liable, אלא in a case where

the ox was standing

the ox

in the marsh

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

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

And we raise a difficulty concerning 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 admits the principal”:

What “

admitting the principal”

is there in this case? After all, he claims, “It is mine”!?

And we answer:

It is necessary

that is, here we are dealing with a case where

the defendant

said to him: “Although it is acquired by me, nevertheless

I did not give you its money

[neither I nor my father paid its value], and

take your ox and go

[take your ox and go].”

We raise another difficulty: “

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

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

what “

admitting the principal”

is there

in this case!?

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

he said to him

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

on the condition that I would bring you satisfaction

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

and I did not do so; take your ox and go

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

We raise another difficulty concerning what is explained in the beraita: One who says to the person who claims against him, “You stole my ox”: “

I found it lost on the road,”

is exempt because he 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 he did not return it, there is no greater thief than he. It turns out that he is not denying the theft at all; yet the beraita indicates that he is denying the theft and merely admitting the principal, the property not being his!?

Said

he resolved it,

the father of Shmuel:

The beraita is dealing

with

a case where he

says: “

An oath:

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

and it turns out that he is not a robber with regard to it.

One who administers an oath to witnesses that they should come and testify for him testimony establishing that money is owed to him, and they deny it and say, “We do not know any testimony concerning you,” and swear falsely to this, has taken the “oath of testimony,” for which one who swears is liable to bring an offering—a sliding-scale sin-offering. There is liability for this oath only when he knows monetary testimony concerning another, for example, he knows testimony that a certain person owes him money or the like.

It is taught: Ben Azzai said:

There are three oaths

that is, there are three circumstances involving a witness who knows testimony for another concerning a lost object that was lost from him, but denies that he knows any testimony concerning him and swears falsely to that effect. Below the Gemara explains whether he is liable or exempt with regard to these oaths.

1.

He recognized it

[the lost object]

but did not recognize its finder

that is, the claimant demanded of his witness that he testify for him concerning a particular lost object that belonged to him, but the witness denied it under oath and said, “I do not know any testimony concerning you.” It turns out that he saw the claimant’s lost object moving through another person’s property, but does not know who owns that property.

2. The witness recognized

its finder but not the object

that is, it turns out that the witness knows about someone who found a lost object resembling the one that was lost by this person, but does not know that it is this person’s lost object.

3.

Neither the object nor its finder

the Gemara proceeds to explain this.

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 the claimant in finding his lost object. When he says, “I do not know any testimony concerning you,”

he swore the truth

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

And we answer:

Say:

he recognized

both the object and its finder

that is, he knows testimony concerning a certain person who found this man’s lost object.

And we explain:

For what halakhic purpose?

that is, what is the halakha concerning these three oaths? Is he liable or exempt from bringing an offering for the oath of testimony? The amoraim disagree about this:

Rav Ami said in the name of Rabbi Ḥanina:

These three oaths are

to exempt

him, since even if he testified, this person would not necessarily become liable to pay money. For even if he recognized both the object and its finder, perhaps the finder would claim that it had been taken from him by unavoidable circumstances.

And Shmuel said:

These three oaths are

to obligate

him to bring an offering for the oath of testimony.

And

we explain: The disagreement between the amoraim depends

on the disagreement between these tannaim; as it is taught:

One who administers an oath to one witness

that he should come and testify for him monetary testimony that would obligate the defendant to take an oath:

He is

exempt

the statement of the first tanna.

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

because the claimant can make the defendant take an oath through the witness’s testimony, and perhaps he will not swear falsely, in which case he will become liable to pay money.

And we explain:

Over 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 equivalent to money;

although he can swear and be exempt, nevertheless it causes monetary liability, since perhaps he will not swear.

And the other—

the first tanna—

holds: “A matter that causes monetary liability

is not considered equivalent to money,”

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

For this reason the amoraim disagree concerning the three oaths involving a lost object, whether he is liable:

Shmuel, who says that he is liable, holds that “a matter that causes monetary liability is considered equivalent to money.” If he testifies that he saw the lost object in a certain person’s possession, the owner of the lost object can ascertain who owns that place; and all the more so if he recognized the finder but not the object, and all the more so if he recognized both the object and its finder.

And Rabbi Ḥanina exempts him, because even if he recognized both the object and its finder, perhaps that certain person would claim that it had been taken from him by unavoidable circumstances, and he would not become liable to pay money. All the more so when he recognized the object but not its finder, or the finder but not the object, where this amounts to no more than something that causes monetary liability; therefore he is exempt.

Rav Sheshet said:

One who denies a deposit,

even without an oath and admission,

but merely denied it and witnesses came and testified that it belonged to the depositor,

the

trustee

becomes a robber with regard to it and is liable for unavoidable circumstances

like a robber.

And a tanna teaches likewise:

As it is taught: It is written in the passage concerning the oath relating to a deposit: “Or he found a lost object

and denied it

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

We learn the punishment,

since the Torah says, “And he shall return the robbery,” and the Torah punished him by making him liable for unavoidable circumstances like a robber with regard to the deposit entrusted to him—

From where is the prohibition derived?

The verse states: “

You shall not deny

a man to his fellow.”

Is it not

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

stated here is

the punishment

for

the denial,

even when he did not swear? Thus we learn 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

that he swore falsely. The Torah did not say that one who denies a deposit must return the robbery and is liable for its unavoidable circumstances except when he swore to that effect; but when he did not swear, this cannot be derived from here.

And we raise a difficulty against this:

Since the latter clause teaches

of that beraita

that he swore, it follows that the first clause

refers even to one

who did not swear!?

For

this is what the latter clause

teaches: It is written, “

And swore falsely,”

we learn: the punishment

[that is, the principal and the one-fifth payment];

from where is the prohibition derived? The verse states: “And

you shall not deal falsely

with a man to his fellow.”

And since the latter clause

deals

with one who swore,

it follows that

the first clause concerns one who did not swear,

and therefore it is proven that he became liable for “and he shall return the robbery” when he denied a deposit, in accordance with Rav Sheshet’s statement.

the first clause does not involve his having sworn. If so, it is proven that he becomes obligated through “and he shall return the robbery” when he denied a deposit, in accordance with Rav Sheshet.

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

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

one who swore,

and the distinction between them is:

Here—

the latter clause—

is referring to a case where

he admitted.

Here—

the first clause—

is referring to a case where

witnesses came.

And the Gemara explains: If

they came

witnesses, he is liable for unavoidable circumstances, and this is what we learned in the first clause: “We learn the punishment.”

But if

he

admitted

[he admitted],

he is liable for the principal, the one-fifth payment, and a guilt-offering , and this is what we learned in the latter clause: “We learn the punishment.”

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

Rami bar Ḥama raised an objection

to Rav Sheshet’s statement from a Mishna in the chapter “All Who Take Oaths.” There, among the other oaths in which the claimant takes an oath and collects, it mentions: “When the opposing party is suspected concerning an oath,” meaning that the defendant became obligated to take an oath and is suspected of swearing falsely; in that case the Sages transferred the oath to the claimant, who swears and collects. And the Mishna explains:

And when the opposing party is suspected concerning an oath, how so

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

One

who lies in

the oath of testimony,

and one

who lies in

the oath concerning a deposit, and even

if he swore

a vain oath,

that is, even if he lied in an oath that did not involve denying a monetary obligation to another.

And we challenge this from what we learned: “and one concerning an oath of deposit,” against Rav Sheshet, since it implies that one who denies a deposit is not disqualified from taking an oath unless he swears falsely:

And if it is so

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

by the denial

alone

he is disqualified

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

They said

the scholars of the academy:

Here

in that Mishna

in what case are we dealing: that

the deposit

was in the marsh

at the time of the denial,

for it is not a denial

that would disqualify him from taking an oath; rather, because

that

it may be said:

he thought

the denier:

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

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

The Gemara supports its reasoning, that wherever it is possible to say, “He was merely evading him,” he is not disqualified:

Know this,

for wherever it is possible to say, “He was merely evading him,” we say so,

for

behold,

Rav Idi bar Avin said: One who denies a loan

is

fit to testify;