Bava Kamma 106b — the Talmud in English

If you say, granted: one who swore, when witnesses came he becomes liable

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

for this reason

then what is said

that we make him liable for a sacrifice for the latter oath

—for the second oath and the remaining oaths—

since he can retract and admit,

and since he did not admit, it is found that he denied money owed to him, for he is obligated for the principal, and if witnesses came they would make him liable.

But if you say

in accordance with Rav, that

when witnesses come,

that he swore falsely,

he is exempt

from the principal, then he can no longer be made liable because he did not admit; and although had he admitted he would have become liable for the principal, for:

Is there anything which, if witnesses came and testified against him, he would be exempt,

—is there something for which he would not become liable had witnesses come—,

and we should arise and make him liable for a sacrifice for the oath since he can retract and admit

—and we should make him liable for his oath only because he did not admit—?! For

now

at the time of the oath

at least, he did not admit!?

That is to say: this is satisfactory if he was not exempt by the first oath from the principal; it is found that when he denied in his second oath, he was denying money for which he was liable. But according to Rav, that witnesses cannot make him liable, if so the claimant has no money in his possession; and although had he admitted he would have become liable for money, you cannot make him liable for the oath concerning a deposit because he did not make himself liable through an admission.

Rabbi Hiyya bar Abba said that Rabbi Yohanan said:

One who claims a claim of theft concerning a deposit pays double payment,

and if

he slaughtered or sold,

he

pays fourfold and fivefold payment;

and from where?

Since a thief pays double payment, and one who claims a claim of theft pays double payment:

Just as a thief who pays double payment,

if

he slaughtered or sold, he pays fourfold and fivefold payment—

so too one who claims a claim of theft concerning a deposit, when he

pays double payment,

if

he slaughtered or sold, he pays fourfold and fivefold payment.

The Gemara thought that the law was learned by a binyan av, and therefore the Gemara raises an objection that one must refute the comparison:

What is so concerning a thief? He pays double payment

even

without an oath,

and therefore, if he slaughtered or sold, the Torah was stringent with him to make him liable for fourfold and fivefold payment;

can you say the same concerning one who claims a claim of theft, who does not pay

double payment except through an oath?

And it may be said that the Torah was not stringent with him to pay fourfold and fivefold payment.

It is written in the Torah, in the section of “an unpaid bailee”: “

When a man gives his fellow money 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 tannaim above, 63b, disputed the interpretation of the verse: some say according to its plain meaning, and the verse speaks of a thief; and some say: 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], whether he did not send his hand into the property of his fellow.”

“For every matter of transgression [in which he is found false in his oath], concerning an ox, concerning a donkey, concerning a sheep, concerning a garment [which were deposited with him, or] concerning every lost object [which he found], about which he says [the witness, meaning two witnesses] that this is it [that which you swore was stolen, it is with you], before God [the judges] shall the matter of both of them come [the two witnesses, so that the court may investigate the testimony; and whichever God shall condemn shall pay double to his fellow” [that is, if the witnesses are valid and they condemn the bailee, then the bailee shall pay double; and if they condemn the witnesses, who were found to be conspiring witnesses, then they shall pay double to the bailee, as they plotted to cause him loss], and this is the section of “one who claims a claim of theft.”

They said

the members of the academy, to resolve it:

Rabbi Yohanan did not learn the comparison of one who claims a claim of theft to a thief by the measure of binyan av, but

it is an analogy,

for the first verse concerns the thief himself, and the section of “one who claims a claim of theft” was juxtaposed to it,

and

therefore

one does not refute an analogy.

And we still ask:

This is satisfactory according to the one who says: one

—the first verse—concerns

a thief, and one

—the second verse—

concerns “

one who claims a claim of theft,”

then

it is well,

for indeed the sections were juxtaposed to one another.

But according to the one who says: this “

if the thief is found

he shall pay double”

and

also “

if he is not found

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

both concern one who claims a claim of theft,

—whereas the section of a thief was stated in another verse, which was not juxtaposed to one who claims a claim of theft—,

what is there to say

to resolve Rabbi Yohanan’s comparison of the law of one who claims a claim of theft to the law of a thief, to make him liable for fourfold and fivefold payment, when one can refute it as we refuted above?!

They said

the members of the academy, to resolve it:

Since Scripture could have said in the first verse, which concerns one who claims a claim of theft, “If a

thief

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

the thief is found,” the extra letter heh comes to include all the laws of a thief in one who claims a claim of theft; and we learn concerning one who claims a claim of theft who slaughtered or sold that he is liable for fourfold and fivefold payment like a thief.

Rabbi Hiyya bar Abba raised an objection to Rabbi Yohanan

from what we learned below, 108b:

An owner who says to an unpaid bailee:

“

Where is my ox?”

He said to him: “

It was stolen.”

And the owner said to him:

“I administer an oath to you,”

and

the bailee said: “

Amen,”

and witnesses testified against him

—against the bailee—

that he ate it,

he

pays double payment, for he claimed a claim of theft.

And this is difficult for Rabbi Yohanan:

But here—

that he ate it—

for it is impossible to

eat

an olive-sized portion of meat without slaughter,

and nevertheless it

teaches: “

he pays double payment,”

and it implies:

double payment, yes

—indeed he pays it—whereas

fourfold and fivefold payment, no,

he does not pay; thus one who claims a claim of theft and slaughtered it is not liable for fourfold and fivefold payment, unlike Rabbi Yohanan?!

Rabbi Yohanan answered:

Here,

in this Mishna,

with what are we dealing? For example, he ate it as an unslaughtered carcass,

and therefore he is not liable for fourfold and fivefold payment, for he did not slaughter it, meaning valid slaughter.

And we ask:

Let him answer him

—let Rabbi Yohanan answer Rabbi Hiyya bar Abba— that here we are dealing with

a case where he ate it as an animal rendered unfit for consumption, for we learned above that Rabbi Shimon exempts one who slaughters and it is found to be unfit, because “an unfit slaughter is not called slaughter”!

Rabbi Yohanan

Rabbi Yohanan

holds like Rabbi Meir,

he

who says: “

An unfit slaughter is called slaughter.”

And we still ask:

Let him answer him,

Rabbi Yohanan, that here we are dealing

with

a thief who stole

a fetus found in its mother’s womb

—a fetus found in its mother’s womb and delivered after slaughter, which never requires slaughter, and afterward he stole it—and therefore he is not liable for it for fourfold and fivefold payment.

And we answer:

Like Rabbi Meir, who says: a fetus found in its mother’s womb requires slaughter.

And we still ask:

Let him answer him,

Rabbi Yohanan: here we are dealing

with a case where

before eating

he stood trial

after he claimed a claim of theft, and, for example, witnesses came that it was in his possession,

and

the court said to him:

Go out and give it to him

double payment; for in such a case, even if he slaughtered it afterward, he is no longer liable for fourfold and fivefold payment as a thief, and the same applies to one who claims a claim of theft,

for Rava said:

if the court said to a thief: “

slaughtered or sold it, he

Go out and give it to him”

double payment, and afterward

he slaughtered or sold,

he

is exempt; what is the reason?

Since the court concluded his matter

—the court decided his case—

and he slaughtered or sold, he is

for him

a robber

through the court’s decision,

and a robber does not pay fourfold and 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,

he

is liable; what is the reason?

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

And if so, this is difficult: why did Rabbi Yohanan not resolve it in this way?!

They said

the members of the academy:

And according to your reasoning—

that you ask concerning Rabbi Yohanan why he did not resolve it with other resolutions—this too is difficult:

let Rabbi Yohanan answer him

that it is

with a partner

—who stole together with another—

who slaughtered without his fellow’s knowledge,

and he is not liable at all.

Rather,

necessarily you must say: indeed, Rabbi Yohanan could have resolved it in this way, but

one

of two or three he mentioned

—Rabbi Yohanan mentioned one resolution out of the two or three resolutions that could have been offered—and if so, your question is also not difficult.

And Rabbi Hiyya bar Abba said that Rabbi Yohanan said:

One who claims a claim of theft concerning a lost object

which he found, he

pays double payment.

Concerning every lost item about which he says

What is the reason?

Because

it is written

in the section of one who claims a claim of theft: “

Concerning every lost object about which he says

that this is it [that which you claimed was stolen, it is with you], before God shall the matter of both of them come; whichever God shall condemn 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 section of an unpaid bailee and one who claims a claim of theft: “

When a man gives

his fellow money or vessels to guard,” and we learn from the fact that the Torah said “a man” that

the giving of a minor is nothing,

and if a minor deposited an object, the bailee need not swear, and they are not liable for double payment when the bailee claims a claim of theft.

And I have only that he gave it when he was a minor and demanded it when he was a minor,

for thus the verse may be interpreted: “When a man gives,” meaning, “when the one who is now a man gives it at the time of the claim”—

If he gave it when he was a minor and demanded it when he was an adult, from where

do we know that one does not swear and they are not liable for double payment concerning it? Therefore

the text says: “

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

to teach:

until the giving and the claim are equal as one.

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!?

And now we ask against Rabbi Yohanan, who makes one who claims a claim of theft liable even concerning a lost object, although there was no giving;

and if it is so

as he says,

let this

deposit which he gave when he was a minor and demanded when he was an adult

also be like a lost object

and let him become liable, for one who gave it when he was a minor is no less than one who did not give it at all and is now an adult?!

And we answer:

he said,

he answered

him,

Rabbi Hiyya bar Abba to Rabbi Abba bar Memel:

Here,

in the beraita which we learned to exempt from double payment when he gave it while he was a minor and demanded it when he was an adult,

with what are we dealing? For example, he ate it

the bailee

when he was

the claimant

a minor,

and it is found that he never possessed the deposit of an adult; can you say the same concerning a lost object, which was in his possession as the deposit of an adult. Rabbi Abba bar Memel raised against Rabbi Hiyya bar Abba:

But if he ate it

when he was

an adult, what?!

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 equal as one,” let it teach: ‘until the eating and the claim are equal as one,’

for it is not necessary that the giving occur when he is an adult; it is sufficient that the eating 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 eating and the claim are equal as one”!

Rav Ashi said,

concerning the objection from the beraita against Rabbi Yohanan:

It is not comparable

—a lost object is not comparable to a deposit of an adult, given to a bailee when he was a minor—:

A lost object comes

—comes—

by the force of a legally competent person.

But

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

does not come by the force of a legally competent person.

And Rabbi Hiyya bar Abba said that Rabbi Yohanan said:

One who claims a claim of theft concerning a deposit is not liable until he denies part of

the deposit, saying: “There was never such a thing,” or “I returned it,”

and admits part

of the deposit that is in his possession, and claims concerning the remainder a “claim of theft”; and included in this is that he does not swear at all the oath of bailees until he admits part and denies part.

What is the reason?

Because

the verse says

in the section of bailees: “about which he says

that this is it,”

and we expound it to say that he does not become liable through a claim of theft until he admits part and denies part.

And the Gemara explains:

And it disagrees -

this [statement] of Rabbi Yohanan, who interprets “for it is this” as implying partial admission, to obligate custodians in an oath only upon partial admission - a

Rabbi Hiyya bar Yosef,

who holds that “for it is this”—which implies partial admission—was not said regarding a custodian at all

as Rabbi Hiyya bar Yosef said: