Bava Kamma 107b — the Talmud in English

The four guardians

are not obligated to take an oath when they denied everything, and they are not liable for double payment on account of it, but

they require a partial denial and a partial admission,

and only in such a case are they obligated to take an oath:

And these are

the four guardians:

an unpaid guardian, a borrower, a paid guardian, and a renter.

Rava said: What is the reason of Rami bar Hama?

An unpaid guardian

requires a partial admission, because

it is explicitly written concerning him

in the section of an unpaid guardian,

“For this is it,”

which implies a partial admission.

A paid guardian

requires a partial admission because

he derives

“giving” from “giving”

[as in both of them it is said: “when he gives”]

from an unpaid guardian.

A borrower

requires a partial admission in order to obligate him to take an oath when he claims that it died through the work, because it is said in the section of a borrower, adjacent to the section of a paid guardian:

“And when a person borrows,”

and behold,

the vav adds to the first matter,

that is, to say that the law of a borrower with regard to this matter is like that of a paid guardian.

A renter

requires a partial admission, whichever way you look at it:

If according to the one who says:

a renter

is like a paid guardian,

then

this is a paid guardian.

If according to the one who says:

a renter

is like an unpaid guardian, this is an unpaid guardian.

And Rabbi Hiyya bar Yosef said:

an unpaid guardian

who claims a claim of theft concerning a deposit,

who claimed, “It was stolen from me,” and took an oath concerning this, and witnesses testified that he himself stole it,

is not liable

for double payment

until he stretches out his hand against it.

That is, before his false oath, he used the deposit.

What is the reason

[what is the reason for the matter]? Because

the verse says

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

“And the master of the house shall approach the judges, if he did not stretch out his hand against his fellow’s property.”

This is the beginning of the verse: he approaches the court, [which is called “judges”] for the purpose of taking an oath, and is exempt through it. And this exemption is stated specifically when he did not stretch out his hand against the deposit, for he also takes an oath concerning this, as the verse implies: he approaches the court to swear that he did not stretch out his hand against it.

From this

you learn

that if he stretched out his hand against it, he is liable

for double payment.

Is that to say,

and the intent of the verse is to say

that in the case where he stretched out his

hand against it we are dealing.

The explanation is that the conclusion of the section, where it is said, “Whom the judges shall condemn, he shall pay double to his fellow,” which is the section of the liability of one who claims a claim of theft and is found false in his oath, relates his condemnation also to this oath. And it is proven that the liability of one who claims a claim of theft applies specifically in a case where he also stretched out his hand against it.

Rabbi Hiyya bar Abba said to them: Thus

[so]

said Rabbi Yohanan:

The liability of one who claims a claim of theft

they taught when it is standing beside its manger.

He had always treated the deposit properly and had not stretched out his hand against it. [And by way of example he mentioned an animal deposit, which grazes at its manger in its ordinary manner.]

Rabbi Zeira said to Rabbi Hiyya bar Abba:

What is Rabbi Yohanan’s intent when he says, “They taught when it is standing beside its manger”?

Is it

specifically when it is standing beside its manger, he said,

and one who claims a claim of theft is liable for double payment only in a case where he did not stretch out his hand against it,

but if he stretched out his hand against it

before he took the oath,

he acquired

the deposit with regard to liability for accidents [for although an unpaid guardian is exempt for accidents, nevertheless, where he stretched out his hand against it, he becomes liable for accidents involving the deposit as for an object belonging to him, whose accidental damage is his responsibility].

And an oath accomplishes nothing with regard to it

to make him liable for double payment if he is found false, because this liability applies specifically when denying the object of the depositor, whereas here he denied an object that is partially his.

Or perhaps,

his intent was different, that

even

when it is

“standing beside its manger,” he said,

that he is liable for double payment even in a case where he did not stretch out his hand against it, which is not the implication of the verse; and kal va-chomer in a case where he stretched out his hand against it, he is liable, for this is the primary implication of the verse, as Rabbi Hiyya bar Yosef said above.

He said to him

Rabbi Hiyya bar Abba to Rabbi Zeira:

I have not heard this

[I have not heard it concerning this very matter] to resolve your doubt; however,

I have heard something similar to it

[another law from which it is possible to prove something concerning our matter]

I have heard.

For Rav Asi said in the name of Rabbi Yohanan: One who claims a claim of loss

concerning a deposit

and takes an oath

concerning it,

and returns

from his earlier claim

and claims a claim of theft,

saying that it was not lost as I said previously, but the deposit was stolen from me,

and takes an oath

concerning it,

and witnesses came

and testified that his claim was false and that the deposit was in his possession,

he is exempt

from double payment.

What is the reason

[and what is the reason for the exemption]?

Is it not because

[is it not because]

he acquired

the deposit with regard to liability for accidents

through the first oath,

in which he swore that it had been lost [as Rav Sheshet said above, that one who denies a deposit becomes a robber and is liable for accidents. And where he swore concerning a denial, everyone agrees that the law is so].

And the same is true in our matter: since he acquired the deposit with regard to accidents, because he stretched out his hand against it, he does not become liable for double payment through his denial and oath, because the matter is considered as though he denied something that was his.

And we reject this:

He said to him

Rabbi Zeira:

No,

the reason there is not because he acquired it with regard to accidents. Rather, the reason there is

since he fulfilled the owners’ claim through the first oath,

since he took an oath once concerning this deposit, he fulfilled his obligation of the guardians’ oath and was exempted from the obligation of an oath imposed upon him, and thereafter the court cannot make him take an oath. And even if he takes an oath, this is not the guardians’ oath, and there is no double payment on account of it when he swears falsely. For he is liable for double payment only on account of the guardians’ oath that is required by law.

And the Gemara brings proof for this rejection:

It was likewise stated: Rabbi Avin said in the name of Rabbi Ila’a, who said in the name of Rabbi Yohanan: One who claims a claim of loss concerning a deposit and takes an oath and returns

from it

and claims a claim of theft [that it was not lost as he said, but was stolen],

сказав, что она не пропала, как он утверждал, а была украдена ],

and takes an oath, and witnesses came

that the deposit was in his possession and that he was the one who stole it,

he is exempt

from double payment,

since he fulfilled the owners’ claim through the first oath [and it is explicit in this statement that the reason for the exemption from double payment is because he fulfilled the owners’ claim through the first oath, and without this he would have been liable. And behold, he acquired it with regard to accidents, and he denied his own; nevertheless, this reason does not exempt him ].

и в этом высказывании прямо сказано, что причина освобождения от двойной суммы состоит в том, что он исполнил свою обязанность перед владельцами посредством первой клятвы; без этого он был бы обязан платить. Ведь он приобрел вещь в отношении ответственности за обстоятельства непреодолимой силы и отрицал вещь, которая в этом отношении принадлежала ему, но, несмотря на это, эта причина не освобождает его от ответственности ] .

And the Gemara brings one who disputes Rabbi Hiyya bar Yosef and expounds the verse in precisely the opposite manner:

Rav Sheshet said: One who claims a claim of theft concerning a deposit, once he has stretched out his hand against it, is exempt.

What is the reason?

[And the reason for the matter is]

for thus the Merciful One says: “And the master of the house shall approach the judges, if

he did not stretch out his hand,” and so on.

That is, his approach to the court, and all the laws of the section stated at its conclusion, “Whom the judges shall condemn,” through which he becomes liable for double payment when he is false, apply only in a case where he did not stretch out his hand against it, as is written in the verse.

If he stretched out his hand against it, he is exempt

from what is stated in the section, namely, the liability for double payment.

And we challenge this:

Rav Nahman said to him: But

they make him take three oaths

an unpaid guardian who claims that it was stolen [as Rav Sheshet said in Bava Metzia 6b], and they are: a'.

An oath that I was not negligent with it

for if he was negligent, he becomes like a robber and becomes liable for accidents. b'

. An oath that I did not stretch out my hand against it,

for if he stretched out his hand against it, he too becomes like a robber and becomes liable for accidents. c'.

An oath that it is not

in my possession,

for perhaps he himself stole it.

Is it not—

since he becomes obligated in all of them together, learn from it that they are one matter; and should

an oath that I did not stretch out my hand against it not be analogous to an oath that it is not in my possession?

And their analogy is:

Just as with an oath that it is not in my possession, when the matter is revealed

when it becomes clear that he is false, that the deposit

is in his possession

[is found in his possession],

he is liable

for double payment, which is the principal section concerning one who claims a claim of theft,

so too an oath that I did not stretch out my hand against it,

also

when the matter is revealed that he stretched out his hand against it, he is liable,

when he is found false in the oath that it is not in his possession.

He said to him

Rav Sheshet to Rav Nahman:

No!

Do not compare it to an oath that it is not in my possession, but

an oath that I did not stretch out my hand against it is analogous to “I was not negligent with it,”

which is also part of the oath of an unpaid guardian; and their analogy is that just as with an oath that I was not negligent with it,

when the matter is revealed

[when the matter becomes clear]

that he was negligent with it

and it was stolen from under his hand,

he is exempt from double payment,

for he did not steal it; rather, the thief stole it because of his negligence in guarding it.

So too with an oath that I did not stretch out my hand against it, when the matter is revealed

[when the matter is revealed]

that he stretched out his hand against it

before he swore that it had been stolen from him,

he is exempt from double payment,

when he is caught in his falsehood, that it was not stolen from him but that he himself stole it.

And although with an oath that I was not negligent the exemption from double payment is not because of the law, but because it is entirely inapplicable in reality—for in truth it was stolen from him and he did not steal it—in any event the Gemara compares the result of the oath to the act, and not the reason. And just as “whom the judges shall condemn,” which makes him pay double, does not refer to “I was not negligent,” so too it does not refer to “I did not stretch out my hand.”

And now the Gemara raises a doubt, since we learned above that one who denies a deposit, for example, he claimed, “It was stolen from me,” and swore, and admitted that this was false, pays the principal, an additional fifth, and a guilt-offering. But if witnesses came and it was false, and it was not stolen from him, but he himself stole it, he pays double payment according to the law of one who claims a claim of theft and does not add an additional fifth. It is said “with its principal and its fifth,” and we expound: when the principal alone is paid at its head, he adds a fifth; but when the principal is not alone at its head, since double payment is also added, there is no fifth.

And

Rami bar Hama asked:

What exempts him from the additional fifth? Is it

the money that makes him liable for double payment—

that is, the money that he denied, concerning which he became liable for double payment—

exempts him from the additional fifth,

for one does not add an additional fifth to money that he denied, since he already adds double payment to it?

Or perhaps the oath that makes him liable for double payment—

that is, he swore concerning his denial, and it was established that he swore falsely—

exempts him from the additional fifth.

For one does not add an additional fifth to a false oath for which he is already liable for double payment.

And we consider it:

What are the circumstances?

What practical difference is there in law regarding what exempts him from the additional fifth?

And the Gemara explains:

For example, he claimed a claim of theft and took an oath

that it was stolen from him,

and returned

from his earlier claim and said: What I claimed—that it was stolen from me—and concerning which I swore, was not so; rather, he arose

and claimed a claim of loss

from me at that time, and it was not stolen.

And he took an oath

concerning it.