Bava Kamma 108a (קח.) — the Talmud in English

And witnesses came—we establish it:

with regard to the time of his first oath, when he claimed, “It was stolen from me,” while the deposit was in his possession, and for this oath he becomes liable to pay double, as one who makes the claim of a thief.

And he admitted afterward,

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

Now there is one sum of money before us—namely, the deposit, to which both oaths relate—and two false oaths: with regard to one of them, there is the testimony of witnesses contradicting him, and he becomes liable to pay double because of it; with regard to the second oath, there is his own admission, and there is no liability to pay double because of it.

And now we raise the following uncertainty:

What is the halakha?

Is

the money that makes him liable to pay double—

namely, the deposit concerning which he denied liability—

exempted from the additional one-fifth payment,

when he pays double for it?

But he became liable for it

[and he became liable for it]

to pay double

because witnesses testified that he had stolen it, and that it was not stolen, as he had claimed.

Consequently, here he would not pay an additional one-fifth, because he already adds a double payment for the money that he denied owing.

Or perhaps

the exemption from the additional one-fifth payment does not depend on the money—the deposit for which a double payment is made—but rather

the oath that makes him liable to pay double,

because witnesses came and testified that he had stolen it, and that it was not stolen,

exempts him from the additional one-fifth payment,

as there is no additional one-fifth payment for an oath on account of which one pays double.

But the latter oath

[that is, his second oath], in which he swore that it had been lost from him,

since it does not make him liable to pay double,

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

it should make him liable to pay an additional one-fifth,

when he admitted that he had sworn falsely, as is the law concerning one who denies liability for a deposit.

And it is indeed possible to obligate him to pay an additional one-fifth for a false oath denying liability for a deposit, when there is no double payment associated with it.

The Gemara brings a proof to resolve this uncertainty:

Rava said: Come and hear: If one said to an ordinary person

who was not guarding his ox,

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

your ox at any time.” And the owner of the ox said to him:

“I administer an oath to you

that you did not steal it,”

and he said, “Amen,”

[and he took the oath],

and witnesses testify against him

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

that he stole it.

He pays a double payment

as is the law concerning 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, an additional one-fifth, and an asham

for robbery, as is the law concerning one who denies having committed robbery, swears, and then admits, whose liability is for the principal, an additional one-fifth, and an asham.

And we infer:

But here, it is the witnesses who make him liable to pay double

and not his false oath, as this is not a case of one who makes the claim of a thief and becomes liable to pay double because of his oath; rather, it is a case of an ordinary thief, in which the testimony of the witnesses makes him liable to pay double. And it is precise from the wording of the beraita: The law that we stated, that he is liable to pay an additional one-fifth, applies specifically when he

“admitted on his own”—yes.

Before witnesses came.

But if he admitted after witnesses came—no

he does not also pay an additional one-fifth, because it is not considered “money paid as the first payment,” since he pays double in addition to the principal.

And if it enters your mind

that the exemption from the additional one-fifth payment depends on the oath, that

an oath that makes him liable to pay double exempts him from the additional one-fifth payment,

this is difficult:

Why

is he liable to pay an additional one-fifth only when he admitted before the witnesses arrived,

but when he admitted after the witnesses arrived, he is not?

Since

[after all],

this oath

[this oath]

does not make him liable to pay double,

as we explained: he is an ordinary thief, and the witnesses make him liable to pay double, not the oath. Consequently, we have an oath that does not make him liable to pay double, and therefore

it should make him liable to pay an additional one-fifth.

Rather, is it not evident from this

from the fact that we exempt him from the additional one-fifth payment, that his exemption does not depend on the oath, but rather

the money that makes him liable to pay double exempts him from the additional one-fifth payment.

And here, there is in fact a double payment for this money, since witnesses came and testified that he is a thief, and the stolen item was found in his possession.

Conclude from this.

Ravina raised a dilemma: If the additional one-fifth payment and the double payment are owed by two different people, what is the halakha?

The Gemara explains:

What are the circumstances—

that is, in what way can there be a case in which the double payment is divided between one person and the additional one-fifth payment is owed by another?

For example, if

the owner

gave his ox to two people

to guard as unpaid bailees,

and both made concerning it

both of them

the claim of a thief. 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 in his possession.

And the other swore

also that it had been stolen from him.

And witnesses came

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

Thus, the one who admitted does not pay double. The other, against whom witnesses came, pays double, as is the law concerning one who makes the claim of a thief.

What is the halakha?

Will the one who admitted be liable to pay an additional one-fifth?

Do we say

that this law, by which the Torah exempts one from paying an additional one-fifth payment for money for which a double payment is already paid, applies specifically when both obligations apply

to one person,

for

the Merciful One was particular that

one person

should not pay both an additional one-fifth payment and a double payment.

But

when these obligations are divided

between two people,

let us say that the one against whom witnesses came

pays the double payment.

And this one

who admitted

pays the additional one-fifth payment,

since he swore falsely and admitted.

Or perhaps

the matter does not depend at all on the person making the payment [whom the Torah protected from paying both this and that], but rather

with regard to one sum of money [for one principal]

[for one principal sum]

the Merciful One was particular,

and exempted him from the additional one-fifth payment so that

an additional one-fifth payment and a double payment would not both be paid for it. [For it would be excessive that, for one principal sum, one should pay double and an additional one-fifth payment.]

[For it is excessive that, for one principal, one should pay both double payment and an additional one-fifth payment.]

And here too,

in our case, the deposit of both of them

is one sum of money,

since both guarded the same ox.

The dilemma remains unresolved:

With regard to the law of “money that is not paid as the first payment”—that one does not pay an additional one-fifth payment for money for which one already pays double—the Gemara raises the following uncertainty:

Rav Pappa raised a dilemma:

Thus far, we have heard only that one does not add an additional one-fifth payment to money for which one already adds a double payment. However, there is room to consider the case of

two additional one-fifth payments or two double payments owed by one person [in which the law of money not paid as the first payment, for which one does not add an additional one-fifth payment, certainly applies]

[in which the law of property for which only the principal is paid certainly applies, so that no additional payment is added],

What is the halakha?

Does he pay an additional one-fifth payment for money for which he is already paying one additional one-fifth payment, and likewise with regard to a double payment, does he pay double for money for which he has already added one double payment?

And we inquire concerning this:

What are the circumstances—

that is, how can there be a case in which he pays two additional one-fifth payments or two double payments?

The Gemara explains:

For example,

an unpaid bailee

who claimed that

the deposit had been lost from him,

and swore

concerning it,

and admitted

that he had lied, so that he became liable for an additional one-fifth payment because of his oath and falsehood,

and then made another claim

further

claim that it had been lost

at another time,

and swore

concerning it,

and admitted

that he had lied, so that ostensibly there is again an additional one-fifth obligation.

Alternatively,

that is, with regard to the other uncertainty, concerning two double payments,

for example,

an unpaid bailee

who made the claim of a thief

that it was stolen from him.

And he swore

concerning it

and witnesses came

and said that he was the thief and that the object was in his possession, so that he became liable to pay double as is the law concerning one who makes the claim of a thief,

and then made another claim

again

the claim of a thief, and swore

concerning it,

and witnesses came

who testified that he had stolen it and that the object had been in his possession when he made this statement.

What is

its law?

Do we say

that specifically with regard to

two different types of payments,

such as a double payment and an additional one-fifth payment,

the Merciful One said that they should not both be paid for one sum of money [for one principal],

[for one principal sum],

but here,

with regard to two additional one-fifth payments or two double payments,

it is one type,

and he must properly pay both.

Or perhaps,

every

two payments

even if they are of the same type,

the Merciful One said that they should not both be paid

both

for one sum of money.

And

consequently,

here

with regard to two additional one-fifth payments or double payments,

they too are two payments,

and he does not pay twice.

And we resolve it:

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

The Torah expressed “fifths” in the plural, and we derive:

The Torah included many additional one-fifth payments for one principal sum.

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

Conclude from this

that specifically two different types of payments are not both paid, whereas one type of payment, such as two double payments or two additional one-fifth payments for one principal sum, are both paid.

After mentioning above the law that a bailee who swore falsely ceases to be a bailee [an unpaid bailee, as he had been] and becomes liable even for accidents, the Gemara presents a case in which a person also ceases to be a bailee through an oath, even through a true oath. The case is as follows:

The owners demanded of the bailee

an unpaid bailee that he return their deposit. He claimed, “It was stolen from me,”

and swore

concerning it, and afterward came and

paid.

And the thief was identified,

and now the thief is liable to pay double.

The

double payment—to whom?

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

Abaye said:

He pays the double payment

to the owner of the deposit,

as he is the owner of the object.

Rava said:

He pays the double payment

to the one with whom the deposit

was

in his possession,

that is, to the bailee, since he paid for the deposit.

The Gemara explains the reasoning of Abaye and Rava:

Abaye said that the double payment is paid to the owner of the deposit

the double payment is paid to him, for although the bailee paid him the value of the deposit, and ordinarily the depositor grants him the right to the double payment when he pays him, here it is not so,

since the bailee caused the depositor trouble

by forcing the depositor to sue him in court in order to obtain release from him

through an oath,

even though in the end he also paid,

he does not grant him the double payment.

Rava said:

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,

he acquires

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

the double payment.

And they disagree with regard to the precise implication 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.

As we learned in the Mishna: “One who deposits with another

for unpaid safekeeping

an animal or utensils,

and he guarded them properly,

and they were stolen or lost.

The depositor demanded them and said, “Return my deposit to me.” The bailee said, “It was stolen from me.” And he rose

and paid, and did not wish to swear.

Although he could have exempted himself through an oath that it had been stolen from him.

For

indeed this is what

the Sages said

the Sages:

An unpaid bailee

who claims that it was stolen

swears

that this is what happened,

and goes out

free of the obligations of a bailee. And because he obligated himself even though he could have exempted himself, therefore, if

the thief is found, he pays a double payment,

and if

the thief slaughtered and sold

the stolen animal [in a case in which he stole an ox or a sheep],

the thief pays

the thief

a fourfold payment—

for slaughtering or selling a sheep,

and

payments of

fivefold—

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.

But if

he swore and did not wish to pay,

as is the basic law of an unpaid bailee, who swears and goes free,

and the thief is found, he pays a double payment.

And if

he slaughtered and sold it, he pays a fourfold payment

for slaughtering or selling the sheep

and a fivefold payment

for slaughtering or selling the ox.

To whom does he pay

these payments?

To the owner of the deposit.

Abaye derives

his ruling

from the first clause

of the Mishna,

and Rava derives

his ruling

from the latter clause.

Abaye derives his ruling from the first clause, which teaches: “He paid and did not wish to swear,”

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

the reason

that the double payment is transferred to him is on the condition

that he did not wish to swear.