Bava Kamma 106b (קו:) — the Talmud in English

Granted, if you say that when witnesses come he is liable because he swore

that one who swore that the item was lost and afterward witnesses came is liable to pay, and this is not in accordance with Rav,

that is why

it is understandable why

we impose upon him an offering for the latter oath

for the second oath and the other oaths,

since he can retract and admit: since he did not admit, it turns out that he denied the monetary obligation to him, for he is liable for the principal, and had witnesses come they would have rendered him liable.

But if you say

in accordance with Rav, that

when witnesses come

that he swore falsely,

he is exempt

from the principal, he can no longer be rendered liable merely because he did not admit. And although had he admitted he would have become liable for the principal, as:

Is there any matter such that, if witnesses came and testified against him, he would be exempt

that is, is there a matter for which he would not become liable had witnesses come,

and we would nevertheless render him liable for an offering for the oath, since he can retract and admit

that is, we would render him liable for his oath only because he did not admit!? But

now

at the time of the oath,

at least, he did not admit!?

In other words: this is understandable if he was not exempted by the first oath from paying the principal. It follows that when he denied the claim in his second oath, he was denying a monetary obligation for which he was liable. But according to Rav, who maintains that witnesses cannot render him liable, the claimant has no monetary claim in his possession. And although had he admitted he would have become monetarily liable, he cannot be rendered liable for an oath concerning a deposit because he did not obligate himself through an admission.

Rabbi Hiyya bar Abba said that Rabbi Yohanan said:

One who claims that a deposit was stolen pays double payment,

and if he

slaughtered or sold it

he

pays fourfold or fivefold payment;

and from where is this derived?

Since a thief pays double payment, and one who claims that a deposit was stolen pays double payment:

Just as a thief who pays double payment,

if he

slaughtered or sold it, pays fourfold or fivefold payment—

so too one who claims that a deposit was stolen, when he

pays double payment,

if he

slaughtered or sold it, pays fourfold or fivefold payment.

The Gemara had thought that the law was derived by means of a binyan av, and therefore the Gemara challenges the comparison, arguing that it can be refuted:

What is true of a thief is that he pays double payment

even

without an oath,

and therefore, if he slaughtered or sold it, the Torah was stringent with him and required him to pay fourfold or fivefold payment.

Can you say the same regarding one who claims that a deposit was stolen, who pays

double payment only through an oath? It may be said that the Torah was not stringent with him to require fourfold or fivefold payment.

It is written in the Torah, in the passage concerning an unpaid bailee: “

When a man gives his fellow silver or vessels to guard, and it is stolen from the man’s house [and the bailee says that the deposit was stolen from his house], if the thief is found [the tanna’im above, on page 63b, disagree about the interpretation of the verse: some say that it is to be understood literally, and that the verse speaks of an ordinary thief; others say that it means if it is found that the bailee himself stole it], he shall pay double [the thief, or the bailee who claimed, ‘It was stolen from me’

].

If the thief is not found [when the bailee made this claim], and the owner of the house is brought before God [and the bailee has already been brought before the court for an oath], that he did not lay his hand on the property of his fellow,

[then,] for every matter of transgression [in which he is found to have lied in his oath], concerning an ox, concerning a donkey, concerning a sheep, concerning a garment [that had been deposited with him, or] concerning any lost item [that he found], about which he says [the witness, meaning two witnesses] that it is this one [which you swore had been stolen, and it is in your possession], before God [the judges] shall come the matter of both of them [the two witnesses, so that the court may investigate their testimony; and whomever God condemns [that person] shall pay double to his fellow” [that is, if the witnesses are valid and they condemn the bailee, the bailee pays double; but if they condemn the witnesses, who are found to be edim zomemim, they pay the bailee double, as they had plotted to cause him to lose]. This is the passage concerning one who claims that a deposit was stolen.

They said

the members of the academy, in resolution:

Rabbi Yohanan did not learn by means of a binyan av that one who claims that a deposit was stolen is comparable to a thief. Rather,

it is a hekesh,

because the first verse concerns the thief himself, and the passage concerning one who claims that a deposit was stolen was juxtaposed to it,

and

therefore

one does not refute a hekesh.

We still challenge this:

This works according to the one who says: one

first verse

concerns a thief, and one

second verse

concerns “

one who claims that a deposit was stolen,”

and

it is well,

for indeed the passages were juxtaposed to one another.

But according to the one who says: this “

if the thief is found

he shall pay double,”

and

also this: “

if he is not found

the thief … he shall pay double to his fellow,”

both concern one who claims that a deposit was stolen

whereas the passage concerning an ordinary thief appears in another verse, which was not juxtaposed to the passage concerning one who claims that a deposit was stolen,

what can be said

to resolve Rabbi Yohanan’s comparison of the law of one who claims that a deposit was stolen to the law of a thief, making him liable for fourfold or fivefold payment? The refutation raised above would still apply!?

They said

the members of the academy, in resolution:

Since the first verse, which concerns one who claims that a deposit was stolen, could have said: “If a

thief

is found, he shall pay double,” but it says: “If

the thief is found,” the extra definite article comes to include all the laws of a thief in the case of one who claims that a deposit was stolen. Thus we learn that one who claims that a deposit was stolen and slaughtered or sold the animal is liable for fourfold or fivefold payment, like a thief.

Rabbi Hiyya bar Abba raised an objection to Rabbi Yohanan

from what we learned below, on page 108b:

An owner who deposited an ox with an unpaid bailee said to him:

“

Where is my ox?”

He said to him: “

It was stolen.”

The owner then said to him:

“I administer an oath to you,”

and

the bailee said: “

Amen.”

And witnesses testify against him

that is, against the bailee,

that he consumed it,

he

pays double payment, since he claimed that the deposit was stolen.

This is difficult for Rabbi Yohanan:

But here—

he consumed it—

it is impossible to

consume

an olive-bulk of meat without slaughtering,

and nevertheless

it teaches: “

he pays double payment,”

which implies:

double payment, yes

that is, he indeed pays it, whereas

fourfold or fivefold payment, no,

he does not pay it. Thus, one who claims that a deposit was stolen and slaughtered it is not liable for fourfold or fivefold payment, contrary to Rabbi Yohanan!?

Rabbi Yohanan answered:

Here,

in this Mishna,

with what are we dealing? With a case where he consumed it as an animal carcass. Therefore he is not liable for fourfold or fivefold payment, since he did not slaughter it, meaning perform a valid slaughter.

We challenge this:

And let him answer him

that is, let Rabbi Yohanan answer Rabbi Hiyya bar Abba: Here we are dealing with

a case where

he consumed it as a tereifa , for we learned above that if one slaughters an animal and it is found to be a tereifa, Rabbi Shimon exempts him because “an unfit slaughter is not called slaughter”!

Rabbi Yohanan

holds in accordance with Rabbi Meir,

who

says: “

An unfit slaughter is called slaughter.”

We still challenge this:

And let Rabbi Yohanan answer him:

Rabbi Yohanan should say that here we are dealing

with

one who steals a

born animal,

an embryo found in its mother’s womb that emerged after its mother was slaughtered and never requires slaughter, and he subsequently stole it. Therefore he is not liable for fourfold or fivefold payment.

We answer:

In accordance with Rabbi Meir, who says: A born animal requires slaughter.

We still challenge this:

And let Rabbi Yohanan answer him: Rabbi Yohanan should say that here we are dealing with a case

where,

before consuming it, he

stood trial

because he had claimed that the deposit was stolen, and witnesses came that it was in his possession,

and they said to him,

the court said to him:

“Go out and give it to him”

double payment. In such a case, even if he subsequently slaughtered it, he is no longer liable for fourfold or fivefold payment as a thief, and the same applies to one who claims that a deposit was stolen,

for Rava said: When the court said to a thief: “

Go out and give it to him” double payment, and afterward he

slaughtered or sold it, he

is exempt; why so?

Once the court has concluded the matter for him

that is, the court has issued its ruling,

and he slaughtered or sold it, he becomes

a

robber

through the court’s ruling,

and a robber does not pay fourfold or fivefold payment.

But if the court had still said to him only: “

You are liable to give it to him,”

and

afterward he

slaughtered or sold it,

he

is liable; why so?

As long as the matter has not been decided for him, he is still a thief.

If so, this is difficult: Why did Rabbi Yohanan not resolve the matter in this way!?

They said

the members of the academy:

And according to your reasoning—you are asking Rabbi Yohanan why he did not offer other resolutions—this too is difficult:

Let Rabbi Yohanan answer him

with a case of

a partner

that is, one who stole together with another,

who slaughtered without his partner’s knowledge,

in which case he is not liable at all.

Rather,

you are necessarily forced to say: It is indeed so; Rabbi Yohanan could have resolved it in that manner, but

he selected one

of two or three possible resolutions. If so, your question is likewise not difficult. And Rabbi Hiyya bar Abba said that Rabbi Yohanan said:

One who claims that a lost item

that he found

was stolen

pays double payment.

What is the reason?

Because it is written

in the passage concerning one who claims that a deposit was stolen: “

Concerning every lost item about which he says

that it is this one [which you claimed was stolen, and it is in your possession], before God shall come the matter of both of them; whomever God condemns shall pay double to his fellow.”

Rabbi Abba bar Memel raised an objection to Rabbi Hiyya bar Abba,

from that which is taught in a beraita:

It is written in the passage concerning an unpaid bailee and one who claims that a deposit was stolen: “

When a man

gives his fellow silver or vessels to guard.” We learn from the Torah’s use of the word “man” that

a minor’s giving has no legal significance,

and if a minor deposited an item, the bailee need not swear, and he is not liable for double payment when he claims that the deposit was stolen.

And I know this only when he gave it while he was a minor and claimed it while he was a minor,

as the verse may be interpreted as saying: “When one who is now a man gives,” meaning that he was a man at the time of the claim—

If he gave it while he was a minor and claimed it while he was an adult, from where

do we know that one does not swear and is not liable for double payment? Therefore

the verse states: “

Before God shall come the matter of both of them,”

to teach:

until the giving and the claim are both at the same stage.

The Gemara now challenges Rabbi Yohanan, who holds that one who claims that a deposit was stolen is liable even in the case of a lost item, although there was no giving:

And if it is so

as he said, then this deposit, which was given when he was a minor and claimed when he was an adult, should also be like a lost item, and he should be liable, since the one who received it when he was a minor is certainly no less than one who never received it at all, when the claimant is now an adult!?

We answer:

He said—

he gave this answer—

to him, Rabbi Hiyya bar Abba to Rabbi Abba bar Memel:

Here,

in the beraita that we learned to exempt from double payment when the item was given while the depositor was a minor and claimed when he was an adult,

with what are we dealing? With a case where the bailee consumed it

while the claimant was

a minor. Thus, he never had a deposit belonging to an adult in his possession. This differs from a lost item, which came into his possession as the deposit of an adult.

Rabbi Abba bar Memel challenged Rabbi Hiyya bar Abba:

But

if he consumed it

while he was an adult, what then!?

Is it indeed so that he pays

double payment!?

But

if so, instead of teaching

in the beraita:

“Until the giving and the claim are both at the same stage,” it should teach: ‘Until the consumption and the claim are both at the same stage,’

since the giving need not have taken place when he was an adult; it is sufficient that the consumption occurred when he was an adult.

He said to him,

Rabbi Hiyya bar Abba to Rabbi Abba bar Memel: Teach in the beraita: “ Until the consumption and the claim are both at the same stage”! Rav Ashi said regarding the challenge from the beraita to Rabbi Yohanan: It is not comparable

that is, a lost item is not comparable to a deposit belonging to an adult that was given to a bailee when he was a minor:

A lost item comes

through a legally competent person.

But

the deposit—which came into the bailee’s possession when the depositor was a minor—

did not come through a legally competent person.

And Rabbi Hiyya bar Abba said that Rabbi Yohanan said:

One who claims that a deposit was stolen is not liable until he denies part of

the deposit, saying: “That never happened,” or “I returned it,”

and admits part

of the deposit that is in his possession, while claiming regarding the remainder that it was stolen. This also means that he does not swear any bailee’s oath until he admits part and denies part.

What is the reason?

Because

the verse says

in the passage concerning bailees: “Regarding which he says

that it is this one,” and we expound this to teach that he does not become liable through a claim that the deposit was stolen until he admits part and denies part.

And the Gemara explains:

And it disagrees—

this is contrary to the opinion of Rabbi Yohanan, who interprets “for this is it” as implying a partial admission, thereby obligating bailees to take an oath only when they partially admit— a

Rabbi Hiyya bar Yosef,

who holds that “for this is it,” which implies a partial admission, was not stated with regard to a bailee at all

; as Rabbi Hiyya bar Yosef said: