Bava Kamma 71a — the Talmud in English

Even so, since he transfers it to him in this manner, [

since the thief transfers the stolen item to him in exchange for the fig]

it is a

sale,

and because he is obligated, in order to fulfill his obligation before Heaven, to return the fig or its value, there is therefore a “sale” here.

We learned in the Mishna:

“He stole and slaughtered on Yom Kippur” ...

he pays fourfold and fivefold payment:

The members of the academy said

to raise an objection:

Why

is he not exempt from the payment because he slaughtered in violation on Yom Kippur, for

although there is no execution [

even though there is no court-imposed death penalty for one who performs labor on Yom Kippur, but rather karet, and karet indeed does not exempt from payment]—

there is

at least lashes

even on Yom Kippur, when he violated [Leviticus 23:28]: “You shall not perform any labor on this very day”—

and

it is

an established principle for us: he does not receive lashes and pay!?

The members of the academy said

to answer:

Whose view is this—

our Mishna, which makes him liable for payment in a place involving lashes—

It is Rabbi Meir’s, who says

[in Makkot 4a]:

he receives lashes and pays

at the same time, and the lashes do not exempt him from payment.

And we object to this: It is clear from our Mishna that if he sold it on Shabbat, he is liable for fourfold and fivefold payment, and it implies: but if he slaughtered it on Shabbat, he is not liable for fourfold and fivefold payment, as is explicitly explained in the Mishna below, 74b, because the court-imposed death penalty to which he became liable for the slaughter on Shabbat exempts him from payment—

and

if—

our Mishna—

is Rabbi Meir’s

view, then

even if he slaughtered on Shabbat

he likewise should not be exempt from payment!?

And if you would say

to reconcile this, that Rabbi Meir

holds that he receives lashes and pays

at the same time

but

he

does not hold that he receives execution and pays,

and therefore if he slaughtered on Shabbat he is exempt even according to Rabbi Meir—

But is that so!?

Does Rabbi Meir not hold that even he receives execution and pays at the same time!?

But it was taught in a beraita:

He stole and slaughtered on Shabbat

and became liable to execution, or

he stole and slaughtered for idolatry

and became liable to execution—

and likewise one who

stole an ox sentenced to stoning

which is forbidden for benefit,

and slaughtered it—

in all these cases, he

pays

the payment of

fourfold and fivefold; these are the words of Rabbi Meir, but the Sages exempt him.

It is thus clear that according to Rabbi Meir, one who slaughters on Shabbat is liable, and if so, our Mishna presents a difficulty either way:

If our Mishna follows the Sages, why is he liable for slaughter on Yom Kippur, when surely the liability for lashes should have exempted him?

And if our Mishna follows Rabbi Meir, then according to him he is liable even for slaughter on Shabbat, whereas it is clear in our Mishna that he is not liable for slaughter on Shabbat.

The members of the academy said

to reconcile our Mishna:

In fact, it is Rabbi Meir’s, and Rabbi Meir agrees that one who slaughters on Shabbat is exempt from payment,

apart from that

beraita in which it is stated according to Rabbi Meir that one who slaughters on Shabbat receives execution and pays according to Rabbi Meir [that is, there is no proof from that beraita],

for this was stated concerning it

to explain it:

Rabbi Yaakov said that Rabbi Yoḥanan said—and some say, Rabbi Yirmeya said that Rabbi Shimon ben Lakish said:

Rabbi Avin and Rabbi Ilaa and the entire group [

and the entire group]

in the name of Rabbi Yoḥanan said

to explain that beraita, that it is dealing

with one who slaughters

the stolen animal

through another

who was sent by him to slaughter it, and the agent slaughtered it on Shabbat or for idolatry, with the result that it is the agent who becomes liable to execution,

and not the sender; therefore the thief is liable for fourfold and fivefold payment, even though the agent slaughtered it on Shabbat or for idolatry.

And we object:

Is it the case that this one—

the agent—

sins,

slaughtering the stolen animal,

and this one—

the thief—

becomes liable

through his slaughter for fourfold and fivefold payment!? But since “there is no agent for a transgression,” it is impossible to make the thief liable for the agent’s slaughter!?

He said—

he answered—

Rava:

Here it is different

with regard to slaughter, concerning which the Torah revealed that “there is an agent for a transgression,”

for

indeed

the verse says: “

and slaughter it or sell it,”

just as a sale is through another,

for a sale exists only through two people: the seller and the buyer,

so too slaughter is through another.

The school of Rabbi Yishmael taught

another source that “there is an agent for a transgression” with regard to slaughter, as it is stated: “and slaughter it or sell it,” and for this reason it says

“

or,”

to include the agent,

that is, slaughter through an agent also makes the sender liable.

The school of Ḥizkiya taught

another source: because it is stated: “Five cattle shall he pay in place of the ox, and four sheep in place of the sheep,” and for this reason the Torah said: “

in place of,”

in order

to include the agent.

Mar Zutra raised an objection

to the explanation we gave of the beraita, that Rabbi Meir makes the thief liable when his agent slaughtered on Shabbat or for idolatry:

Is there such a matter that if he himself were to do it, he would not be liable, but if he makes an agent do it, he becomes liable [

Is there agency such that if the sender himself performed the act he would not become liable, whereas when his agent does so he becomes liable], when surely the power of the agent cannot be greater than that of the sender!?

And if so, since if the sender himself had slaughtered on Shabbat or for idolatry he would not have become liable, because “he stands liable for the greater one,” then even when his agent did so, it is impossible for the sender to become liable!?

He said

in answer

to him, Rav Ashi

to Mar Zutra:

There, it is not because he would not become liable, but because he stands liable for the greater one!

And we object:

And if it is one who slaughters through another, what is the reason of the Sages, who exempt!?

That is: this works out well if the beraita is dealing with the thief himself slaughtering the animal: their dispute, that of Rabbi Meir and the Sages, concerning slaughtering on Shabbat or for idolatry, is well understood, for Rabbi Meir holds “he dies and pays,” whereas the Sages hold “he does not die and pay.” But according to the interpretation explained in the beraita, that the sender himself was not liable for death, but his agent was, then what is the reason of the Sages who exempt the sender!?

They said

the scholars of the academy, to reconcile this:

Who are the Sages,

who are the Sages in the beraita who exempt—

It is Rabbi Shimon,

поскольку он сказал:

who said: slaughtering that is not fit,

for eating—that is, slaughtering through which the animal does not become permitted for eating—

is not called

“slaughtering”

and not “slaughtering” in the sense of tevihah, and every liability and prohibition that comes through slaughtering does not apply to it. Therefore, slaughtering on Shabbat, which is slaughtering that is not fit, as he explains below, and likewise slaughtering for idolatry, where the animal is forbidden in eating and benefit, is not called slaughtering so as to become liable for it for four and five payments.

They said

the scholars of the academy, to object to this interpretation:

Granted,

slaughtering for

idolatry,

which is indeed slaughtering that is not fit.

And

also the slaughtering of

the stoned ox,

which the Sages exempted in the beraita from the payments of four and five, this too is slaughtering that is not fit, since the stoned ox is forbidden in benefit.

But

the slaughtering of

Shabbat,

which the agent slaughtered—why did the Sages exempt him? After all,

it is fit slaughtering!?

For

so

we learned: One who slaughters on Shabbat and on the Day of Atonement, even though he

is

liable with regard to his life

[liable for death on Shabbat and for excision on the Day of Atonement],

his slaughtering is valid

and the meat is permitted for eating!

They said

the scholars of the academy, to reconcile this:

He holds—

Rabbi Shimon—

like Rabbi Yohanan the Sandlar,

who forbids eating “an act of Shabbat,” that is, something done deliberately in violation of Shabbat.

For we learned: One who cooks on Shabbat:

If he cooked

inadvertently—

he may eat

the cooked dish, both the cook himself and even on Shabbat.

But if he cooked

deliberately,

the cook himself

may not eat

the cooked dish forever; and the same law applies that others may not eat it.

The words of Rabbi Meir.

Rabbi Yehuda says:

If he cooked

inadvertently,

the cook may not eat it immediately, but

he may eat

the cooked dish

on the conclusion of Shabbat

and when the time of “the time required for its being done” has passed—that is, when the amount of time has passed in which it would have been possible to cook it had he not cooked it on Shabbat—because Rabbi Yehuda penalizes inadvertence on account of deliberateness. But on Shabbat neither he nor others may eat it.

But if he cooked

deliberately,

then he

may not eat

the cook

forever,

but others may eat it on the conclusion of Shabbat.

Rabbi Yohanan the Sandlar says:

If he cooked

inadvertently,

then the cooked dish

may be eaten on the conclusion of Shabbat by others

only

but not by him,

who transgressed and cooked.

But if he cooked

deliberately,

then the cooked dish

may never be eaten, neither by him

who transgressed and cooked,

nor by others,

Israelites; but he may sell it and give it to a gentile.

It follows that according to Rabbi Yohanan the Sandlar, one who deliberately slaughters on Shabbat—his slaughtering is not fit to permit the animal for eating, since according to his view it is forbidden forever and to everyone. And according to the view of Rabbi Yohanan the Sandlar, so too is the view of the Sages who exempt from four and five payments for an ox that was slaughtered on Shabbat.

The Gemara explains:

What is the reason of Rabbi Yohanan

the Sandlar,

who holds that an act of Shabbat is forbidden for eating?

As Rabbi Hiyya expounded at the entrance of the house of the Nasi

[as Rabbi Hiyya expounded at the entrance of the house of the Nasi]:

It is written in the Torah: “

And you shall observe Shabbat, for it is holy to you,”

and therefore Scripture called it “holy,” in order to teach:

Just as a holy thing is forbidden for eating, so too an act of Shabbat is forbidden for eating.

You might say:

Just as a holy thing is forbidden in benefit, so too an act of Shabbat is forbidden in benefit.

Therefore

Scripture says: “

for it is holy

to you,”

and “to you” indicates

it shall be yours

to derive benefit from it.

One might have thought even

if he cooked

inadvertently,

it would be forbidden for eating like a holy thing, both to him and to others.

Scripture says: “And you shall observe Shabbat, for it is holy to you;

those who profane it

its profaners shall surely be put to death,”

so Scripture spoke of one who acted deliberately, and Scripture teaches:

Deliberately

is when

I told you

that an act of Shabbat should be like a holy thing,

but not inadvertently.

They dispute it—

in explaining the position of Rabbi Yohanan the Sandlar—

Rav Aha and Ravina!

One

of them

said: An act of Shabbat

is forbidden by

Torah law.

And one

of them

said: an act of Shabbat is forbidden only by

запрещён только

rabbinic law.

The Gemara explains the reason of each one:

The one who says

that an act of Shabbat is forbidden by

Torah law

according to Rabbi Yohanan the Sandlar—his reason is

as we said,

that it is derived from Scripture: “It is holy to you.”

And

the one who says

that an act of Shabbat is forbidden only by

rabbinic law,

his reason is:

For

Scripture says: It is holy,

Scripture teaches that it said “it”:

it

is Shabbat

that is holy, but its acts are not holy,

and it is the Sages who prohibited an act of Shabbat.