Bava Kamma 112a (קיב.) — the Talmud in English

Before despair,

when the owners had not yet despaired of recovering the stolen property, and therefore the sons did not acquire it, since a change of possession alone does not effect acquisition.

Rav Adda bar Ahava taught Rami bar Hama’s statement with regard to this,

Rami bar Hama did not state his position concerning our Mishna, but concerning the following beraita, as it was taught:

If their father left them

having bequeathed to them

money of interest, even though they know that it is money of interest, they are not liable to return it

to the borrower who had paid the interest to their father.

And concerning this

Rami bar Hama said: This indicates

that this is proof that

the possession of an heir is equivalent to the possession of a purchaser

and therefore they are not liable to return the interest, since the borrower had already despaired of recovering it, and the heirs acquired it through despair and a change of possession.

Rava said: Actually, I can tell you that the possession of an heir is not equivalent to the possession of a purchaser.

And here is different,

as to why the heirs are not obligated to return the interest, because

the verse says [Leviticus 25:36]: “

Do not take from him interest or increase,

and you shall fear your God, and your brother shall live with you.”

and you shall fear your God, and your brother shall live with you.”

And from the end of the verse, “and your brother shall live with you,” we derive the law concerning the return of interest, as the Torah says:

Return it to him

return the interest to him

so that he may live with you

so that he will be able to live together with you.

And we infer: Only

to him the Merciful One issued a warning,

the lender himself, who took the interest and violated “Do not take from him interest or increase”; only he is warned to return the interest and fulfill “and your brother shall live with you.” But

to his son,

who did not take the interest,

the Merciful One did not issue a warning

to return the interest.

And the Gemara explains:

The one who teaches it

Rami bar Hama’s statement

with regard to the beraita, all the more so

does he hold that Rami bar Hama stated his position also

with regard to the Mishna,

that the reason the sons are exempt from payment when their father left the stolen property to them is that the possession of an heir is equivalent to the possession of a purchaser.

Whereas

the one who teaches it with regard to the Mishna

will hold that Rami bar Hama’s statement was made only concerning the Mishna.

But with regard to the beraita, Rami bar Hama teaches it in accordance with Rava,

that the reason is not that the possession of an heir is equivalent to the possession of a purchaser; rather, we derive from the verse that the obligation to return interest is imposed only upon the lender himself and not upon his heirs.

The Sages taught: One who steals and feeds his sons is exempt from payment.

If he left it before them,

he left the stolen property to them as an inheritance and it is still extant in their possession. If the sons are

adults,

they are

liable to pay.

But if they are

minors, they are exempt from payment,

since minors are not subject to legal liability. [ And this is in accordance with the opinion of Sumakhos, as will be explained below.]

And if they said

the

adult

sons to the victim of the theft:

We do not

know the accounts that our father settled with you,

and perhaps he paid you money in exchange for the stolen property,

they are exempt

from payment.

And we consider this: Since

they say, “We do not know,”

will they be

exempt?

It is certainly known that the object came into their father’s possession through theft, whereas the possibility that he paid him for the stolen property is merely uncertain; and when one party makes a definite claim and the other expresses uncertainty, the definite claim prevails?

And we answer:

Rava said: This is what it means: When the adult sons say, “We know the accounts that our father settled with you,”

and that he paid you for the stolen property,

and you have no claim against us whatsoever,

and he did not remain indebted to you in any way,

they are exempt

from payment, since they make this claim with certainty.

It was taught in another beraita: One who steals and feeds his sons is exempt from payment.

If he left it before them,

he bequeathed the stolen property to them

and they ate it, whether they are adults or minors, they are liable

to pay.

And we consider this:

Minors—are they liable?

It is no different than if they caused damage,

for even if minors entered the victim’s courtyard and caused damage there, they are not required to pay, as we learned above [87a]: “And when they injure others, they are exempt.” How, then, can they be held liable for eating the stolen property?

And we answer:

Rav Pappa said: This is what it means: If he left

their father

it before them, and they had not yet eaten it, whether they are adults or minors, they are liable

to return the stolen property, since as long as the stolen property is extant, it remains in the possession of its owners, and they are liable to return it to them.

Rava said: If their father left them a borrowed cow, they may use it

the heirs

throughout the entire period of its borrowing,

for the entire period during which their father had borrowed the cow from its owners.

If it died,

the cow,

they are not

the sons

liable for accidents.

Although their father would have been liable had it died in his possession, since a borrower is liable for accidents, nevertheless, the sons are exempt because they did not borrow it and did not assume responsibility for its safekeeping.

If they thought

the sons

that the cow belonged to their father, and they slaughtered and ate it, they pay the value of the meat at a reduced rate

they pay only two-thirds of the price of the meat, since had they known that they would have to pay for the meat, they would not have purchased it at its full price.

If their father left them liened property

land,

they are liable to pay.

The Gemara immediately explains this.

There are those who teach this

the latter clause, “If their father left them liened property,”

with regard to the first clause

of Rava’s statement. If the cow died, they are not liable for accidents; concerning this Rava said that if their father left them land, they are liable to pay, because this land had already been placed under a lien during their father’s lifetime to secure payment for the accident. According to Rava, a borrower’s liability for accidents takes effect from the time of borrowing, and consequently, from that time his property was already liened for payment of the accident. This is not like Rav Pappa’s opinion, stated below, that a borrower’s liability for accidents takes effect only at the time of the accident.

And there are those who teach it with regard to the latter clause

of Rava’s statement: When they slaughtered and ate it, they pay the value of the meat at a reduced rate. If their father left them land, they pay the full price of the meat.

And the Gemara explains:

The one who teaches it with regard to the first clause

will hold that

all the more so

Rava stated this

with regard to the latter clause,

concerning the case in which they slaughtered and ate it: If their father left them land, they pay the full price of the meat.

According to this view, Rava

disagrees

with

Rav Pappa,

as Rava holds that liability for accidents is imposed upon the borrower from the time of borrowing. Therefore, even in the first clause, where the cow died, Rava said that if their father left land, it is liened from his lifetime to secure payment for the accident, whereas Rav Pappa holds that payment liability takes effect only at the time of the accident.

And

the one who teaches it with regard to the latter clause

holds that Rava stated the law of “If their father left them liened property” only there,

but with regard to the first clause,

where the cow died, he

did not

say that if he left them land they would be liable to pay for the accident,

and this is the opinion of Rav Pappa,

because Rava agrees with Rav Pappa that payment liability takes effect only at the time of the accident. At that point, their father, the borrower, was no longer alive, and therefore he could not become liable for the accident and have his property placed under a lien for it. The sons, meanwhile, did not borrow the cow and did not assume responsibility for its safekeeping.

And the Gemara cites the statement

that Rav Pappa said: If he had a stolen cow,

having stolen a cow on the eve of Shabbat,

and slaughtered it on Shabbat, he is liable

to pay the fourfold or fivefold payment, because

he had already become liable for the theft before he came to incur the prohibition of Shabbat,

and there is no exemption here on the principle of “he stands liable for the more severe offense.” Since he had already become liable for the principal payment at the time of the theft, which occurred on the eve of Shabbat, the prohibition of Shabbat does not exempt him from it. Although he became liable for the fourfold or fivefold payment only at the time of slaughter, which occurred on Shabbat, he is nevertheless not exempt from it, because the principle of “he stands liable for the more severe offense” does not apply to a liability for a fine, as explained in tractate Ketubot [34b]: Since every liability for a fine is a novel provision instituted by the Torah, we do not apply this principle to it.

If a cow had been borrowed by him,

he borrowed a cow before Shabbat,

and slaughtered it on Shabbat, he is entirely exempt

because

the prohibition of Shabbat and the prohibition of theft take effect simultaneously.

For at the moment of the slaughter on Shabbat, he performs the act of robbery, thereby robbing it from its owners; and since he is liable to death for this slaughter, it is impossible to obligate him also to pay the principal for the slaughter, as the principle is: kamt lei bid’rabba minei.

It is likewise impossible to obligate him to pay the fine of four and five—even though the exemption of kamt lei bid’rabba minei does not apply to this—for the liability for double payment and for four and five applies only to the thief himself, who steals from the owner’s house, or to a bailee who makes a claim of theft. But in the case of a borrower, it is not applicable to say that he exempts himself by making a claim of theft, since he is liable for the theft; and the slaughter that he performed is not an act of theft but an act of robbery. Therefore, a liability for four and five does not apply to him. This indicates that Rav Pappa’s view is that a borrower becomes liable only at the time of the accident, and we do not say that from the time of the borrowing the cow stands in his possession and he becomes liable to pay the principal to the owners. For if so, even when a cow had been borrowed by him and he slaughtered it on Shabbat, he should have been liable, since the borrowing had taken place before Shabbat.

The Sages taught:

It is written [Leviticus 5:23] “

and he shall return the stolen item that he stole.”

What does

“that he stole”

teach? For is it not obvious that he must return what he stole? Rather, it teaches that he

returns

only if it is

like that which he stole,

meaning that the stolen item still exists. But if the stolen item no longer exists, he is exempt from paying its value.

Certainly, the robber himself is liable to pay for the stolen item even when it no longer exists. Inevitably, then, the verse is speaking with regard to the robber’s sons, who are exempt from paying when the stolen item no longer exists.

From here they said: One who robs and feeds his sons is exempt from payment.

If he left it before them,

meaning that he bequeathed the stolen item to them and it still exists,

whether

the sons are

adults, or whether

they are

minors, they are liable

to return it.

In the name of Somkhus they said:

If the sons are

adults, they are liable.

If the sons are

minors, they are exempt.

The son of Rabbi Yirmeya’s father-in-law

the son of Rabbi Yirmeya’s father-in-law

slammed the door in Rabbi Yirmeya’s face,

locking the door of his father’s house so that Rabbi Yirmeya could not enter it, because Rabbi Yirmeya wanted to take possession of the house for himself.

Rabbi Yirmeya came

to

Rabbi Avin

to bring a claim against his father-in-law’s son, who was preventing him from entering and taking possession of the house.

Rabbi Avin said:

“He is asserting his own property,”

your father-in-law’s son! The house belongs to him by inheritance, and he is acting properly by preventing you from entering it.

He said to him,

Rabbi Yirmeya:

“But I have witnesses

who testify

that I established possession of it during his father’s lifetime,”

as Rabbi Yirmeya claimed that the father had sold it or given it to him as a gift].