Bava Kamma 108a — the Talmud in English

And witnesses came, I have established it—

with regard to the time of his first oath, when he claimed, “It was stolen from me,” when the deposit was in his possession, and he became liable on this oath for double payment, according to the law of one who makes a claim of theft

and he subsequently admitted,

and afterward he himself admitted that it had not even been lost from him, in accordance with his second oath.

Now we have before us one monetary object—that is, the deposit, to which both oaths relate—and two false oaths: concerning one of them there is a denial by witnesses, and he becomes liable to pay double on account of it; and concerning the second oath there is his admission, and there is no liability to pay double on account of it.

And now we inquire:

What

is the law? Does

the monetary object that makes him liable for double payment—

that is, the deposit concerning which he denied—

exempt him from the fifth

when he pays double for it?

But he has become liable to him for it

[and after all, he became liable to him for it]

for double

because of the witnesses who testified that he had stolen it, and not thieves, as he said.

And consequently here he will not pay a fifth, because concerning the monetary object of the denial he already adds double payment.

Or perhaps

the exemption from the fifth does not depend on the monetary object—the deposit for which double payment is made—but rather

the oath that makes him liable for double payment

through the coming of witnesses who testified that he had stolen it, and not merely that it was stolen,

exempts him from the fifth,

for there is no fifth for an oath on account of which he pays double.

But this latter oath

[and after all, his second oath] that he swore that it had been lost from him,

since it does not make him liable for double payment,

because he did not claim, “It was stolen from me,” and liability for double payment applies specifically to one who makes a claim of theft,

shall make him liable for a fifth,

when he admits that he swore falsely, according to the law of one who denies a deposit.

And it is properly possible to obligate him to pay a fifth for a false oath of denial concerning a deposit, for which there is no double payment.

And the Gemara brings a proof in order to resolve this problem:

Rava said: Come and hear: If he said to one of the marketplace

who is not guarding his ox,

“Where is my ox that you stole?” and he says, “I never stole

your ox.” And the owner of the ox says to him:

“I administer an oath to you”

that you did not steal it,

and he said, “Amen,”

[and swore],

and witnesses testify against him

that they saw this ox in his possession, and it is true

that he stole it.

He pays double payment

according to the law of every thief whose law is to pay double.

And if he admitted on his own

before witnesses came, or if they did not come at all,

he pays the principal, a fifth, and a guilt-offering

for robbery, according to the law of one who denies a robbery, swears, and admits, whose law is that he pays the principal, a fifth, and a guilt-offering.

And we prove:

But here, it is witnesses who make him liable for double payment,

and not his false oath, for the case is not one of a person making a claim of theft, who becomes liable for double payment through his oath; rather, it is a case of an ordinary thief, in which the testimony of the witnesses is what makes him liable for double payment. And it is precise from the language of the beraita: the law that we say—that he is liable for a fifth—applies specifically when he

admitted on his own; not

before witnesses came.

But if he admitted after witnesses, not

does he also pay a fifth, because it is not considered “a monetary object paid at the outset,” since he pays double as well, in addition to the principal.

And if it should enter your mind

that the exemption from the fifth depends on the oath, that

an oath that makes him liable for double payment exempts him from the fifth,

this is difficult:

why

is he liable for a fifth only when he admitted before the witnesses came,

but when he admitted after witnesses, not?

Since

[after all],

this oath

[this oath]

does not make him liable for double payment,

as we explained, for he is an ordinary thief, and it is witnesses who make him liable for double payment, not an oath. And consequently we have an oath that does not make him liable for double payment; if so,

it should make him liable for a fifth.

Rather, is it not, learn from it

that since we exempt him from a fifth, his exemption does not depend on the oath, but rather

the monetary object that makes him liable for double payment exempts him from the fifth.

And here, after all, there is double payment for this monetary object, since witnesses came that he was the thief, so that the theft was found in his possession.

Learn from it.

Ravina raised a problem: A fifth and double payment, concerning two men—what is the law?

And the Gemara explains:

What are the circumstances—

that is, in what manner is this situation possible, in which the double payment belongs to one and the fifth to another?

For example, he handed

the homeowner

his ox to two people

for them to guard it as unpaid custodians,

and both of them made concerning it

a claim of theft.

And one

of them

swore

that it had been stolen from him,

and

afterward

admitted

that he had sworn falsely and that the ox was with him.

And one swore

also that it had been stolen from him.

And witnesses came

that the animal had been in his possession at the time he swore, and that he had sworn falsely.

The one who admitted does not pay double. The other, against whom witnesses came, pays double according to the law of one who makes a claim of theft.

What

is the law? Will the one who admitted become liable to pay a fifth?

Do we say

that this law, by which the Torah exempted payment of a fifth for a monetary object for which double payment is already paid, applies specifically when these two liabilities take effect

in one man,

for

the Merciful One was particular that he should not pay

one person

a fifth and double payment?

But

when these liabilities are divided

between two men,

let us say that the one against whom witnesses came

pays the double payment.

And this one,

who admitted,

pays the fifth,

for he swore falsely and admitted.

Or perhaps

the matter does not depend at all on the person who pays [whom the Torah spared from paying both this and that], but rather

concerning one monetary object

[concerning one principal]

the Merciful One was particular,

and exempted it from a fifth so that

a fifth and double payment should not both be paid for it.

[For it is excessive that for one principal he should pay double and also an additional fifth.]

And here too,

in our case, the deposit of both of them

is one monetary object,

since both guarded the same ox.

Teyku:

And concerning the law of “a monetary object that is not paid at the outset”—that one does not pay a fifth for a monetary object for which he already pays double—the Gemara is uncertain:

Rav Pappa raised a problem:

We have heard this only concerning one who does not add a fifth to a monetary object for which he already adds double payment. However, there is room to discuss

two fifths or two double payments in one man

[in which the law of a monetary object that is not paid at the outset certainly applies, so that he does not add a fifth to it]:

what

is the law? Will he pay a fifth for a monetary object for which he is already paying one fifth, and likewise concerning double payment, will he pay double for a monetary object for which he has already added one double payment?

And we inquire:

What are the circumstances—

that is, how is such a situation possible, in which he pays two fifths or two double payments?

And the Gemara explains:

For example,

an unpaid custodian

who made a claim of loss

of the deposit from him,

and swore

about it,

and admitted

that it was false, so that he becomes liable for a fifth because of his oath and his falsehood,

and went back and made

another

claim of loss

at another time,

and swore

about it,

and admitted

that it was false, so that apparently there is again a liability for a fifth.

Alternatively,

that is, concerning the other uncertainty, regarding two double payments,

for example,

an unpaid custodian

who made a claim of theft,

“He stole it from me.”

And he swore

about it,

and witnesses came

and said that he was the thief, that the object was in his possession, so that he became liable for double payment according to the law of one who makes a claim of theft,

and went back and made

again

a claim of theft, and swore

about it,

and witnesses came

that he had stolen it and that the object had been in his possession at the time he spoke about it.

What

is its law?

Do we say

that specifically with

two kinds of monetary payment,

such as double payment and a fifth,

the Merciful One said that they should not both be paid for one monetary object

[for one principal],

but here,

with two fifths or two double payments,

it is one kind,

and it is properly necessary to pay both of them?

Or perhaps

every

two monetary payments,

even if they are of the same type,

the Merciful One said that they should not both be paid

for one monetary object

.

And

consequently,

here too,

with two fifths or double payments,

they too are two monetary payments,

and he will not pay twice.

And we resolve it:

Come and hear: Rava said, “And he shall add its fifths to it.”

The Torah stated the fifths in the plural. And we expound:

The Torah multiplied many fifths for one principal.

For otherwise, it should have written “its fifth” in the singular, and not “its fifths” in the plural.

Learn from it

that specifically two kinds of monetary payment are not paid, but one kind of monetary payment

[such as two double payments, or two fifths for one principal] is paid.

The owners sued the custodian

who was an unpaid custodian, that he should return his deposit. And he claimed, “It was stolen from me,”

and swore

about it, and afterward he came

and paid.

And the thief was identified,

and now the thief is obligated to pay double.

The

double payment—to whom?

On the one hand, the depositor is the owner of the object; and on the other hand, the custodian paid for the object to the depositor.

Abaye said: He pays the double payment

He pays the double payment

to the owner of the deposit,

for he is the owner of the object.

Rava said: He pays the double payment

He pays the double payment

to the one with whom the deposit

was

in his possession,

that is, the custodian, since he paid for the deposit.

And the Gemara explains the reasoning of Abaye and Rava:

Abaye said: To the owner of the deposit

the double payment is paid, for even though the bailee paid him the value of the deposit, and generally the depositor transfers to him the right in the double payment when he pays him, here it is not so,

since he troubled him

the bailee troubled the depositor, having forced him to sue him in court and to be freed from him

by an oath,

even though in the end he also paid;

he does not transfer the double payment to him.

Rava said: The double payment is paid

The double payment is paid

to the one with whom the deposit

was

in his possession.

For

since he paid

the value of the deposit,

it is transferred to him

retroactively, the deposit before it was stolen, and consequently he acquires the

double payment.

And they disagree concerning the precision of the Mishna

at the beginning of the chapter “The One Who Deposits,” which is the source of the law that the depositor transfers the double payment to the bailee.

For we learned: One who deposits with another

for unpaid guarding

an animal or utensils,

and he guarded them properly,

and they were stolen or lost.

The depositor sued him and said, “Return my deposit to me.” And the bailee said, “It was stolen from me.” And he arose

and paid and did not wish to swear.

Even though he could have been exempted by an oath that it had been stolen from him.

For

this is what

the Sages said:

A

unpaid custodian

who claims that it was stolen

swears

that this is what happened

and leaves

exempt from the liabilities of a custodian. And because he obligated himself even though he could have been exempted, therefore, if

the thief is found, he pays double payment,

and if

he slaughtered or sold

the theft [in a manner in which the thief stole an ox or a sheep],

he pays,

the thief

fourfold payment—

for slaughtering or selling a sheep,

and

payment of

fivefold payment—

for slaughtering or selling an ox—

to whom does he pay? To the one with whom the deposit

was

in his possession

before it was stolen.

However, if he

swore and did not wish to pay,

according to the basic law of an unpaid custodian, who swears and leaves,

and the thief is found and pays double payment.

And if he

slaughtered or sold, he pays fourfold payment

for slaughtering or selling the sheep

and fivefold payment

for slaughtering or selling the ox.

To whom does he pay

these payments?

To the owner of the deposit.

Abaye inferred

his law

from the first clause

of the Mishna,

and Rava inferred

his law

from the latter clause.

Abaye inferred it from the first clause, for it teaches: “He paid and did not wish to swear,”

the double payment goes to the bailee. And he infers from the words “and did not wish to swear” that the

reason

that it transfers the double payment to him is on condition

that he did not wish to swear,