Bava Kamma 62b (סב:) — the Talmud in English

but remained unwilling to sell, and the other person took it from him against his will. In that case, the transaction is invalid, and therefore he is called an extortionist, despite having paid him for it. Mishna:

A spark,

a spark of fire

that emerged from beneath the hammer and caused damage renders [the one who struck] liable,

the person who struck the hammer against the object that was damaged.

If a camel was laden with flax, passed through the public domain, and its flax entered a shop and caught fire,

the flax caught fire

from the shopkeeper’s lamp,

which was burning inside the shop,

and it ignited

the burning flax

the

building

[the large house],

the owner

of the

camel is liable

for the damage to the building, because he should not have loaded so much flax onto the camel that it would enter the shop.

If

the

shopkeeper

placed

his lamp outside

the shop, and as a result the flax on the camel caught fire and burned the building,

the shopkeeper is liable,

because he is the negligent party.

Rabbi Judah says: In the case of a Hanukkah lamp,

if the lamp that the shopkeeper placed outside was a Hanukkah lamp, he

is exempt,

because he acted with permission, as it is a mitzva to place a Hanukkah lamp outside at the entrance to one’s house, on account of publicizing the miracle.

Gemara:

Ravina said in the name of Rava: Learn from Rabbi Judah,

who exempts in the case of a Hanukkah lamp, that

it is a mitzva to place it

the Hanukkah lamp

within ten

handbreadths of the ground.

For if it enters your mind

that one may also place it

above ten

handbreadths, then

why did Rabbi Judah say

that

in the case of a Hanukkah lamp

the shopkeeper

is exempt? Let the owner of the building say to the shopkeeper:

the owner of the building could say to the shopkeeper:

You should have placed it

you should have placed the Hanukkah lamp

above the camel and its rider,

so that the building would not be burned when a camel laden with flax passed by; and since you did not do so, you were negligent and must pay!

Rather, is it not so? Learn from this: It is a mitzva to place it within ten

handbreadths of the ground, and therefore he had no option of placing it above the camel.

The proof is rejected:

They said: I will always tell you

that one may place the Hanukkah lamp

even above ten

handbreadths.

What will you say

that, if so, the owner of the building could say to the shopkeeper:

You should have placed it

the Hanukkah lamp

above the camel and its rider.

That is not an argument.

Since he is engaged in a mitzva,

as the shopkeeper is engaged in the mitzva of the Hanukkah lamp,

the Rabbis did not trouble him to that extent,

to the extent of requiring him to place the lamp so high, above the camel. Therefore, he is not considered negligent.

Rav Kahana said: Rav Natan bar Minyomi expounded in the name of Rabbi Tanḥum: A Hanukkah lamp that one placed above twenty cubits is invalid.

Because people do not see it at such a height, and there is no publicizing of the miracle,

as with a sukka and

the crossbeam of the

alleyway,

which are likewise invalid when above twenty cubits.

We conclude the chapter “Ha-Kones.”

A. This chapter deals almost entirely with the laws of theft: a bailee who claims that a thief stole the item entrusted to him, slaughter and sale, and related matters concerning witnesses who falsely plotted to obligate a person for theft, slaughter, or sale.

B. A thief pays double payment; and if he slaughtered or sold the ox or sheep that he stole, he pays five cattle in place of the ox, and four sheep in place of the sheep.

C. If a bailee to whom an item was entrusted claims that the item was stolen from him, in a manner that exempts him from payment under the laws of guarding imposed upon him, and he takes an oath to that effect, and the item is found in his possession, he pays double payment. And if the deposit was an ox or sheep, and he claimed that it had been stolen, took an oath concerning it, and afterward slaughtered or sold it, he pays fourfold or fivefold payment.

These laws are explained in our Mishna and in the sugya based upon it.

Mishna:

Meruba

is

the measure of double payment

that a thief pays, or that a bailee who claims that a thief stole the deposit in his possession pays when it is found to be in his possession—

greater than the measure of fourfold and fivefold payment

that a thief pays if he slaughtered or sold his theft [or the deposit after claiming that a thief stole it]. In other words, the measure of double payment applies more broadly than fourfold and fivefold payment:

For the measure of double payment

that is paid for theft or when one claims that a thief stole the item

applies both to an item possessing life and to an item that does not possess life.

But

if

the measure of fourfold and fivefold payment

that is paid for slaughter or sale

applies only to an ox and a sheep, as it is stated: “

When a man steals an ox or a sheep and slaughters it or sells it,

he shall pay five cattle in place of the ox and four sheep in place of the sheep.”

But regarding the following matter, there is no difference between double payment and fourfold and fivefold payment:

One who steals after a thief [

one who steals from the thief’s house]

does not pay double payment

to the person from whom it was stolen or to the thief.

And

also

neither one who slaughters nor one who sells after the thief—

that is, one who steals from the thief’s house and slaughters or sells the animal does not

pay fourfold and fivefold payment.

Gemara:

We learned in the Mishna: Meruba, the measure of double payment, is greater than the measure of fourfold and fivefold payment, because the measure of double payment applies both to an item possessing life and to an item that does not possess life, whereas the measure of fourfold and fivefold payment applies only to an ox and a sheep. The Gemara infers:

But

what about the following distinction between double payment and fourfold and fivefold payment, namely: “

The measure of double payment applies both to a thief and to one who claims that a thief stole the item”—

just as a thief pays double payment, so too a person who claims concerning a deposit entrusted to him that it was stolen, and the theft is found in his possession, pays double payment. “

But

if

the measure of fourfold and fivefold payment applies only to a thief”—

if, after the bailee claimed that the animal had been stolen, he himself went and slaughtered or sold it, he does not pay fourfold and fivefold payment—

This distinction

is not taught

in our Mishna. If so:

Our Mishna

supports the opinion of Rabbi Ḥiyya bar Abba,

who imposes liability for slaughter and sale after one has claimed that a thief stole the item!

For Rabbi Ḥiyya bar Abba said in the name of Rabbi Yoḥanan: One who claims that a thief stole a deposit

indeed

pays double payment;

and if he

slaughters or sells

the deposit in his possession after claiming that a thief stole it, he

pays fourfold and fivefold payment.

Our Mishna supports this law, because the Mishna did not distinguish in this matter between double payment and fourfold and fivefold payment.

Some say [

there are those who transmitted this teaching in another form]:

Let us say: Does our Mishna—which did not distinguish between double payment and fourfold and fivefold payment concerning one who claims that a thief stole the item—

indeed

support Rabbi Ḥiyya bar Abba, who said in the name of Rabbi Yoḥanan: One who claims that a thief stole a deposit pays double payment; if he slaughters or sells it, he pays fourfold and fivefold payment?

And concerning this they said in the beit-midrash: Do not derive support for Rabbi Yoḥanan’s words from our Mishna, because

who

would

teach

in our Mishna

“There is no difference between”

the measure of double payment and the measure of fourfold and fivefold payment other than the distinction taught in our Mishna, so that we would be forced to infer from this that there are no further differences between them!?

For it does not teach that. Rather, it teaches:

“Greater”

it teaches

in our Mishna—

and therefore one may say that the

tanna [

taught]

and left unmentioned

additional distinctions between double payment and fourfold and fivefold payment, such as the case of one who claims that a thief stole the item.

We learned in the Mishna:

That the measure of double payment applies

both to an item possessing life and to an item that does not possess life:

And the Gemara explains:

From where are these words derived,

that double payment applies even to an item that does not possess life?

As the Sages taught:

It is written in the Torah in the section concerning an unpaid bailee: “

When a man gives money or vessels to his fellow to guard, and it is stolen from the man’s house [and the bailee says that the deposit was stolen from his house].

If the thief is found [the tanna’im below, 63b, disagree concerning the meaning of the verse: some say it has its straightforward meaning and speaks of a thief; and some say: if it is found that the bailee himself stole it]] he shall pay double [the thief, or the bailee who claimed: ‘It was stolen from me’].

If the thief is not found [when the bailee made this claim], and the owner of the house approaches the Divine authorities [and the bailee has already approached the court to take an oath], that he did not lay a hand on his fellow’s property.

[If so,] for every matter of transgression [if he is found to have lied in his oath], concerning an ox, concerning a donkey, concerning a sheep, concerning a garment [that were deposited with him, or] concerning any lost item [that he found], about which he says [the witness, that is, two witnesses] that it is this one [the item concerning which you swore that it was stolen; it is in your possession], before the Divine authorities [the judges] shall come the matter of the two of them [the two witnesses, so that the court may investigate the testimony, and whomever the Divine authorities condemn shall pay double to his fellow”—that is, if the witnesses are valid and they condemn the bailee, the bailee pays double; and if they condemn the witnesses, who are found to be plotting witnesses, they pay double to the bailee, as they plotted to cause him a loss]. This is the section concerning a bailee who claims that a thief stole the item.

And we learn, in accordance with the hermeneutical principle that “a generalization, a specification, and a generalization may be interpreted only as resembling the specification,” what objects the Torah made subject to double payment in the case of a bailee who claims that a thief stole the item. “

And we learn, according to the hermeneutical principle that “with a generalization, specification, and generalization, you infer only something similar to the specification,” for what did the Torah make one who makes the claim of a thief liable for double payment? “

For every matter of transgression”—

this is a

generalization. “

Concerning an ox, concerning a donkey, concerning a sheep, concerning a garment”—

this is a

specification. “

Concerning any lost item”—

the verse has

returned

to a

generalization—

And this is the hermeneutical principle in the Torah: “

A generalization, a specification, and a generalization may be interpreted only as resembling the specification.”

Just as the specification—

an ox, a donkey, a sheep, and a garment—

explicitly refers to an object that can be moved and whose substance itself has monetary value [

it itself is worth money],

so too every object that can be moved and whose substance itself has monetary value

is subject to double payment.

Excluded

from the law of a bailee who claims that a thief stole the item and from the law of double payment in general are

land, which

is

not movable.

Likewise,

slaves, which

are

likened to land

by the verse: “You shall hold them as an inheritance for your sons after you, to inherit as a permanent holding; you shall work them forever.” And just as one does not pay double payment for land, so too one does not pay double payment for slaves.

Likewise,

promissory notes

that were entrusted to a bailee

which, although

they are

movable property,

they

do not themselves possess monetary value,

but merely enable one to collect money from the borrower. And

excluded

is also

consecrated property.

For “when a man gives to

his fellow”

is written

at the beginning of the passage, and a bailee is not the fellow of consecrated property. You might say:

If so, just as the specification

of an ox, a donkey, and a sheep

explicitly refers to an object whose carcass imparts ritual impurity through contact and carrying, so too every object whose carcass imparts ritual impurity through contact and carrying

is subject to double payment—

but birds,

whose carcasses do not impart ritual impurity through contact and carrying ,

are not

subject to double payment?

Before the Gemara clarifies from where we know that birds are included for double payment, the Gemara questions the very formulation of the question:

And can you really say this

that one is liable for double payment only for an item whose carcass imparts ritual impurity through contact and carrying

But

even

“a garment”

is written

in the Torah among the particulars, and a garment, which is clothing, does not impart ritual impurity through contact and carrying. Thus, we can again derive even those whose carcasses do not impart ritual impurity through contact and carrying from “a garment,” since they at least resemble the particular of “a garment”!

The members of the academy said

to explain:

We are speaking only of living creatures

that

we said

namely:

say

perhaps:

With regard to living creatures, an item whose carcass imparts ritual impurity

through contact and carrying, yes

one is indeed liable for double payment for it—

but

an item whose carcass does not impart ritual impurity through contact and carrying

no

one is not liable for double payment for it.