Bava Kamma 108b (קח:) — the Talmud in English

This

if

he took an oath, even though he paid

him the value of the deposit, he does not thereby acquire the double payment. Rather,

to whom does

the thief pay the double payment or the fourfold or fivefold payment?

To the owner of the deposit.

And

Rava derives his inference from the latter clause, which states: If he took an oath and did not wish to pay,

the double payment belongs to the owner of the deposit. And he infers: The primary

reason

that he does not acquire the double payment is

that he did not wish to pay.

For if this were not so, it should have stated simply: “He took an oath,” without the continuation. And since the tanna added and said, “and did not wish to pay,” it may be proved:

If he paid,

even though he

also

took an oath,

the depositor grants him the right to the double payment. And

to whom does

the thief pay the double payment or the fourfold or fivefold payment?

To the one whose deposit

was stolen

from him.

But now this is difficult for us, for these inferences contradict one another. If so:

For Abaye, the latter clause is difficult,

as it is the source of Rava’s inference, since it indicates that if he ultimately paid, that is acceptable.

And we answer:

Abaye could say to you:

Do not infer as Rava did, that “he took an oath and did not wish to pay” means that he did not wish to pay at all, and then conclude that if he ultimately paid, he acquires the double payment. Rather,

this is what it teaches: He took an oath and did not wish to pay before taking the oath,

and not that he did not wish to pay at all,

but

even though he wished to pay

after taking the oath

[as is evident from his actions, since he ultimately paid]. Nevertheless, he does not grant the double payment to the bailee, but rather

to whom does

the thief pay the double payment, etc.?

To the owner of the deposit.

And for Rava, the inference from the first clause is difficult,

the

first clause,

from which Abaye proved his ruling.

Rava could say to you:

Do not infer as Abaye did: “He paid and did not wish to take an oath,” but if he also took an oath, he would not receive the double payment. Rather,

this is what it teaches: He paid and did not wish to remain under the

exemption by which he was exempted from the depositor through

his oath, but

he also came

and paid;

the depositor thereby grants him the deposit retroactively [and consequently the double payment belongs to him].

To whom does

the thief pay the double payment?

To the one whose deposit

was stolen

from him.

The Gemara further discusses the law of the bailee’s oath, by which he removes himself from the status of a bailee through taking an oath:

The owners sued the bailee

to return their deposit, and he claimed, “It was stolen from me,”

and took an oath

to that effect,

and the thief was identified,

and

the bailee sued him

in court,

and

the thief admitted that he had stolen it. Afterwards,

the owners sued

the thief in court,

and he denied

the theft.

And

the owners brought

witnesses

who testified that the item was found in his possession and that he had stolen it.

Since there is a rule that one who admits liability for a fine is exempt, and the double payment is a fine,

do

we say that

the thief was exempt through his admission

to the

bailee,

from whom it was stolen, who was the interested party? If so, his claim against the thief is a valid claim, and his admission is likewise a valid admission. For it is obvious that if the thief makes an admission merely to an unrelated person, it is not an admission that exempts him from the fine.

Or

did

the thief not become exempt

from the double payment

through his admission

to the

bailee,

because once the bailee took an oath that it had been stolen, he was immediately released from liability to the depositor and was no longer the interested party; consequently, his claim was not a valid claim, and the thief’s admission to him was not considered an admission that exempts him from the double payment?

And we resolve it:

Rava said:

It depends on how the bailee took his oath.

If he truly took an oath

that it had been stolen from him and that this was not due to his negligence,

the thief became exempt through his admission

to the

bailee.

Since it is clear to us that had it not been stolen, this bailee would have continued guarding it, as he is a genuine bailee and it is beneficial for the owners to leave it in his hands, his guardianship did not end through the theft and oath, and the thief’s admission was made to the interested party.

However,

if the bailee took a false oath,

claiming that it had died, broken, or been stolen through circumstances beyond his control, and it became clear that this was not so,

the thief did not become exempt through his admission

to the

bailee,

because the owners certainly would not have continued leaving the deposit in his hands. His guardianship had ended, and consequently the thief had not admitted to the interested party; this was not an admission that exempts him from the fine.

The Gemara further raises a question:

Rava asked:

In a case where the

bailee stood

ready

to take a false oath, but they did not allow him

to take the oath,

what is

the law? That is, is it because he stood ready to take a false oath that the owners no longer trust him and he ceases to be a bailee? Or, since he has not yet taken the oath, does he remain trustworthy in their eyes and properly retain the status of a bailee, so that the thief’s admission is considered a valid admission?

The question remains unresolved.

Rav Kahana teaches

Rava’s statement

as follows

—as we explained above: In the case of one who took a false oath, it is obvious to him that the thief’s admission is not a valid admission.

But

Rav Tavyomi teaches

Rava’s statement

as follows:

Rava asked: If the bailee took an oath

to the

falsehood, what is

the law? Since he took a false oath, perhaps he will ultimately regret it and pay; therefore his claim against the thief is still a valid claim, as he remains obligated to pay, and consequently the thief’s admission is an admission to the interested party.

Or perhaps, since he took a false oath, he ceased to be a bailee, and the thief’s admission to him is not considered an admission that exempts him from the fine.

The question remains unresolved.

The Gemara further raises the converse question to the one raised above:

The owners sued

an unpaid bailee to return his deposit,

and he paid,

as the law is that the double payment belongs to him.

And

afterwards

the thief was identified, and the owners sued him, and he admitted

that he had stolen it. Afterwards,

the bailee sued him, and he denied

it to him. The bailee then

brought witnesses

who testified that he had indeed stolen it.

Did

the thief become exempt through his admission

that he made to the

owners, or did he not

become exempt through this admission?

The reason for the uncertainty is:

Do we say

[do we say] that

the bailee can say to the owners:

The item was indeed yours when it was in my possession, but now

since you have taken the money for yourselves

[since you took the value of the deposit from me],

you have withdrawn from this matter,

and your claim against the thief is no longer considered the claim of an interested party; consequently, his admission is also not considered an admission that exempts him from the fine.

Or perhaps, they can say to him:

The owners can say to the bailee: I am still the interested party, because

just as you acted for us

[did for me]

a favor

—namely, you paid us the value of the deposit even though you were not obligated to do so—so too

we too

are obligated to do you a favor, and

we will do you

the favor to which I became obligated, namely

we will pursue the thief,

and then

we will take

our deposit,

and you take your money,

so he is consequently considered the interested party, his claim is the claim of an interested party, and the thief’s admission is an admission that exempts him from the double payment.

The question remains unresolved.

Until now we have learned that the bailee’s oath removes him from the status of a bailee. The Gemara now discusses whether he can remove himself from that status through an oath:

It was stated: If it was stolen through circumstances beyond his control

by armed bandits,

and

before the bailee managed to take an oath concerning this,

the thief was identified,

and he now has two options: one, to take an oath that the theft occurred through circumstances beyond his control and thereby become exempt; and the other, to sue the thief, since he is still the bailee of the item.

Abaye said:

The matter depends:

If he is an unpaid bailee,

since an unpaid bailee is exempt from theft, he is not obligated to pursue the stolen item, and consequently both of the above options are available to him.

If he wishes

to pay the owners beyond the strict measure of the law, he pays

and takes him

[the thief]

to court

—that is, he sues him in court. And if

he wishes

not to pay, he

takes an oath

and becomes exempt, and the owners will deal with the thief.

If he is a paid bailee,

who is liable for theft, he pays the owners the value of the stolen item, and he

takes him

—that is, the robber—

to court.

For he is obligated to return the item to the owners and ensure that it does not remain in the hands of thieves.

And although he is exempt in cases of circumstances beyond his control, his exemption applies only to payment. In this case he will not pay, since the thief is before us and he will pay; but he is obligated to return the item to its owners from the thief, because a paid bailee is liable for theft.

And Rava

disagreed

and said

that there is no practical difference between a paid bailee and an unpaid bailee. Rather,

both this one and that one

pay the money to the owners,

and take him

—the robber—

to court.

For the bailee is obligated to pursue the lost item.

And the Gemara raises an objection:

Can it be said that Rava disagrees

with

the

position of

Rav Huna bar Avin?

For Rav Huna bar Avin sent: If it was stolen through circumstances beyond his control

by armed bandits,

and the thief was identified, if he is an unpaid bailee

—who is exempt from theft—

if he wishes,

he pays beyond the strict measure of the law

and takes him

—the robber—

to court;

and if

he wishes

not to pay, he

takes an oath

and becomes exempt, and the owners will sue the thief.

And the Gemara answers:

Rava could say to you:

Rav Huna also holds that an unpaid bailee must take him to court.

Rather,

here,

Rav Huna,

with what are we dealing

[what case did he discuss]? With

a case where he had already taken an oath

before the thief was apprehended; at that point he became exempt in accordance with the law through his oath, and his guardianship had already ended.

But this cannot be explained in this manner,

for it says: If he wishes, he takes him to court; if he wishes, he takes an oath

—which implies that he had not yet taken an oath.

And the Gemara answers:

This is what he is saying:

If

the unpaid bailee wishes, he stands by his oath

that he took before the thief was found, and he is exempt. And if

he wishes

to act beyond the strict measure of the law, even though he has already taken an oath, he pays

and takes him

—the thief—

to court.

We learned above that Abaye and Rava hold that the guardianship of a paid bailee does not end when the item is stolen through circumstances beyond his control. Rather, where no monetary loss will result, he must ensure that the deposit is returned to its owners. However, there is apparently one who disagrees with them:

For

Rabba Zutra raised

this law discussed by Abaye and Rava,

as follows:

If it was stolen through circumstances beyond his control

from the home of a paid bailee [for had the case involved an unpaid bailee, it should have said simply: “It was stolen”],

and the

thief

returned his theft and placed it

in the bailee’s home, and

afterwards

it died through negligence, what is

the law of this bailee?

Do we say

[do we say] that

since it was stolen through circumstances beyond his control,

and a paid bailee is exempt in cases of circumstances beyond his control,

his

[guardianship]

ended

and he is no longer responsible for it?

Or perhaps, since it returned

to his domain,

it returned

[the deposit returned]

to his guardianship.

The question remains unresolved.

Mishna:

1. One who accepts a deposit to guard it under the law of an unpaid bailee, and the owner of the house comes and asks,

“Where is my deposit?”

and

the bailee says

to him,

“It was lost. I adjure you,” and

the bailee

said, “Amen,”

thereby accepting the oath upon himself,

and

the

witnesses

came

and testified against him that he had consumed it,

and it was found that he had taken a false oath,

he pays the principal.

But if, after the owner sued him and he took a false oath, he then

admitted on his own,

the law is that he

pays the principal, the additional fifth, and brings an asham,

as it is stated: “When a man or woman commits any of the sins of man ... and they confess their sin that they committed, he shall restore his guilt in its principal, and add its fifth to it, and give it to the one to whom he is guilty.” The Sages derived from the fact that it is written, “and they confess,” that one who took a false oath pays the additional fifth and brings an asham only when he admits on his own.

2. He said to the bailee,

“Where is my deposit?” He said to him, “It was stolen. I adjure you,” and he said, “Amen,”

thereby accepting the oath upon himself,

and

the

witnesses

came

and testified against him that he had stolen it

for himself,

he pays the double payment,

because one who claims that a deposit was stolen pays like the thief himself.

But if, after denying liability concerning the deposit and taking an oath, he then

admitted on his own, he pays the principal, the additional fifth, and brings an asham,

as is the law for one who took a false oath, but he does not pay the double payment, because one who admits liability for a fine is exempt.

3.

One who robs his father and takes an oath to him

that he did not rob him,

and

his father dies, and afterwards he admits that he robbed him , even though he has a share in the stolen property by virtue of being an heir,

he must pay

the entire

principal and

the

additional fifth

and the asham

to his sons,

who are the brothers of the robber,

or to his brothers

of the robbed party, when he has no sons.

Because he must fulfill his obligation before Heaven and remove the stolen property from his possession.

And if he does not wish

to forfeit his share of the inheritance,

or if he does not have

sufficient assets that would enable him to relinquish his share, the Sages instituted that he

borrow

money equivalent to the share he has in the stolen property,

and the

creditors come and collect

his share of the inheritance from his brothers.

4.

One who says to his son, “It is forbidden by a vow

—the language of a vow—so

that you may not benefit from what is mine; if I die,

your father,

inherit me,”

his son inherits him, because after his death his property is no longer his but belongs to his son.