Bava Kamma 70a (ע.) — the Talmud in English

Who is the tanna [who taught the statement concerning]

“the discreet ones”?

It is Rabbi Dosa, so that the anonymous Mishna concerning

the discreet ones would not contradict

Rabbi Yohanan, who holds that a person cannot consecrate or redeem an item that is not in his possession,

and [this is] so that the anonymous Mishna of “the discreet ones” should not contradict Rabbi Yohanan, who holds that a person cannot consecrate or redeem an item that is not in his possession,

and

because

Rabbi

Yohanan

did not state his view in accordance with an anonymous Mishna that represents an individual opinion,

and “the discreet ones,” although it is an anonymous Mishna, expresses an individual opinion.

The Sages of Nehardea said: We do not write a power of attorney

for movable property

when one sends an agent to litigate with another concerning movable property that the latter has in his possession,

he cannot write a “authorization” for the agent, by which he transfers to him the movable property that the other person holds; the practical consequence is that if the movable property is lost while in the agent’s possession, the claimant may return and demand from the defendant the property that he holds.

Asked

Rav Ashi said to Ameimar: What is the reason

that one does not write an authorization for movable property?

He said to him,

Ameimar to Rav Ashi:

Because of Rabbi Yohanan! For Rabbi Yohanan said: If one robbed [an item] and the owners have not despaired of recovering it, neither of them can consecrate it: this one because it is not his, and that one because it is not in his possession,

and therefore he cannot transfer to the agent what the defendant holds, since it is “not in his possession.”

Some say:

This is what

the Sages of Nehardea said: We do not write a power of attorney for movable property that he has denied

[one does not write an authorization to litigate with someone who denied in court that he possessed anything belonging to the sender]!

According to the “some say” formulation:

The reason is that he denied it

that one does not write the authorization, and because

it appears to be false

[it appears false that the witnesses signed that he has something in the other person’s possession, while the latter claims that he has nothing in his possession]—

But

if he

did not deny it

in court,

we write

an authorization.

And

the Sages of

Nehardea further said:

A power of attorney in which it is not written

“Go, litigate, and acquire and recover it for yourself”,

[go and litigate with so-and-so, and recover it from him for yourself]

has no validity

[it accomplishes nothing]!

And we explain:

What is the reason

that he must write this?

Because the other can say to him

[because the defendant can say to the authorized agent]:

“You are not a litigant of mine,”

and I do not wish to litigate with you.

Abaye said: And if it is written in it

in the authorization written by the sender: “Go, litigate, and acquire and recover it for yourself

for one-half, one-third, or one-quarter”

[or one-third or one-quarter]. In that case, the defendant must litigate with the authorized agent, because:

Since he can litigate

the defendant

the case

with the authorized agent

concerning half,

which the agent recovers for himself,

he can litigate the entire case

[since the defendant must litigate with the agent concerning the portion that the agent recovers for himself, he must also litigate with him concerning the portion that the agent recovers for his sender], and he cannot say to him, “You are not a litigant of mine.”

Ameimar said:

Since it is written in the authorization, “Go, litigate, and acquire and recover it for yourself,” therefore,

if he seized

the property that he recovered from the defendant for himself—

we do not take it from him

[we do not recover it from him]!

Rav Ashi

Rav Ashi disagrees with Ameimar and

said

that he cannot seize property for himself—

Since he wrote to him

[since the sender wrote to him in the authorization]:

“Whatever you incur through the litigation, I accept upon myself”

[I accept responsibility for paying all expenses that you incur in this litigation], it follows that he

made him an agent,

and therefore when he recovered property, he recovered it for his sender, and he cannot seize it.

Some say:

He is not an agent; rather,

he made him a partner

[the sender made the authorized agent a partner]! And we explain:

What is the practical difference,

meaning, what difference does it make whether he is an agent or a partner?

To seize half

[to seize half of what he recovered from the defendant]. If he is merely an agent, he cannot seize anything at all for himself from what he recovered; whereas if he made him a partner, he can at least seize half of what he recovered from the defendant. The Gemara concludes:

And the halakha is: He made him an agent,

and he cannot seize anything for himself.

Mishna:

One stole on the testimony of two, that is, two witnesses testified concerning a person that he stole,

Mishna:

If one stole on the basis of two witnesses,

that is, two witnesses testified that a person stole,

and he slaughtered or sold on their testimony

that is, those same witnesses testified that he slaughtered or sold it,

or on the basis of two other witnesses:

he

shall pay the fourfold or fivefold payment.

He stole and sold on Shabbat.

Or if he

stole and sold

it so that it could be offered

for idolatry.

so that it could be offered for

Or if he

stole and slaughtered it on Yom Kippur,

and incurred liability for karet through its slaughter.

stole and slaughtered the animal on Yom Kippur, and became liable to receive karet for his slaughter.

Or if he

stole from his father and slaughtered or sold

his father’s property, and afterward his father died.

Or if he

stole and slaughtered it, and afterward consecrated it.

and afterward his father died. Or if he stole the animal, slaughtered it, and afterward consecrated it.

In all these cases, the thief

pays the fourfold and fivefold payment

to the owners; and when his father died, he pays his brothers who inherited together with him.

If he stole and slaughtered

not for the purpose of eating, but

for medicinal purposes

because he wants to prepare something from its flesh,

or

to feed some of its flesh

to dogs—

and even

if one slaughtered it and it was found to be a tereifa

that is unfit for eating—

and likewise

if one slaughtered non-sacred animals in the Temple courtyard

and they thereby became forbidden to eat—

in all these cases, he

pays the fourfold and fivefold payment.

Rabbi Shimon exempts him in these two cases,

namely, when one slaughtered an animal and it was found to be a tereifa, and when one slaughtered non-sacred animals in the Temple courtyard, because Rabbi Shimon holds: “Slaughtering that is not fit for eating is not called slaughtering.”

Gemara:

We learned in the Mishna: If one stole on the testimony of two witnesses, and slaughtered or sold the animal on their testimony, or on the testimony of two other witnesses, he pays the fourfold and fivefold payment:

The Gemara asks:

Shall we say that our Mishna

—which permits two witnesses who testify only about the slaughter, even though they do not testify about the theft—

is not in accordance with Rabbi Akiva

?

For if it is in accordance with Rabbi Akiva,

it would not have been possible to accept the witnesses to the slaughter who do not testify about the theft, because:

For

he said

Rabbi Akiva: Since it is written: “By the testimony of two witnesses shall a

matter

be established,” we learn that the witnesses must state a complete matter,

and not half a matter.

That is, testimony that is completed by two sets of witnesses cannot be accepted when each set relates “half a matter”; and the testimony concerning the slaughter is also “half a matter,” since the slaughter does not obligate him without a theft that preceded it, while the witnesses to the slaughter do not testify about the theft.

As it was taught in a beraita: Rabbi Yosei said,

son of Halafta:

When Abba Halafta went

my father, whose name was Halafta]

to Rabbi Yohanan ben Nuri to study Torah, and some say

that Rabbi Yosei said as follows: When

Rabbi Yohanan ben Nuri went to Abba

Halafta

to study Torah—