Bava Kamma 71a (עא.) — the Talmud in English

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

because the thief transfers ownership of the stolen animal 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:

If one stole and slaughtered on Yom Kippur ...

he pays the 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 the animal while committing a prohibition on Yom Kippur? After all,

although there is no execution

for one who performs labor on Yom Kippur, but only karet—and karet indeed does not exempt one from payment—

nevertheless,

there are at least lashes

for violating the prohibition on Yom Kippur stated in Leviticus 23:28: “You shall not perform any labor on this very day”—

and

after all,

we have established that one is not flogged and required to pay!?

The members of the academy said

to resolve the matter:

Whose opinion is this—

the opinion of our Mishna, which imposes payment where lashes would otherwise apply?

It is the opinion of Rabbi Meir, who says

[in Makkot 4a]:

One is flogged and required to pay

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

And we raise an objection to this: It is stated in our Mishna that if he sold the animal on Shabbat, he is liable for the fourfold and fivefold payment. This implies, however, that if he slaughtered it on Shabbat, he is not liable for the fourfold and fivefold payment, as is explicitly stated in the Mishna below, on page 74b. This is because the judicial death penalty to which he became liable for slaughtering the animal on Shabbat exempts him from payment—

and

if—

our Mishna—

is the opinion of Rabbi Meir,

then

even if he slaughtered it on Shabbat

he should likewise not be exempt from payment!?

And if you would say

to resolve the matter that Rabbi Meir

holds that one is flogged and required to pay

at the same time,

but

he

does not hold that one is executed and required to pay,

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

is that so!? Does Rabbi Meir really not hold that even one who is executed and required to pay at the same time is liable for the payment?

But it was taught in a beraita:

If one stole and slaughtered the animal on Shabbat

and thereby became liable to death, or if he

stole and slaughtered it for idolatry

and thereby became liable to death—

and likewise, one who

stole an ox sentenced to be stoned,

which is prohibited for benefit,

and slaughtered it—

in all these cases, he

pays

the

fourfold and fivefold payment; this is the statement of Rabbi Meir, whereas the Rabbis exempt him.

It is thus explicit that according to Rabbi Meir, one who slaughters an animal on Shabbat is liable. If so, our Mishna presents a difficulty whichever way one looks at it:

If our Mishna follows the opinion of the Rabbis, why is he liable for slaughtering the animal on Yom Kippur? After all, his liability to lashes should exempt him.

And if our Mishna follows the opinion of Rabbi Meir, then according to him one is also liable for slaughtering on Shabbat, whereas our Mishna indicates that one is not liable for slaughtering on Shabbat.

The members of the academy said

to resolve the difficulty in our Mishna:

Actually, it is the opinion of Rabbi Meir, and Rabbi Meir concedes 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 is both executed and required to pay according to Rabbi Meir [that is, there is no proof from that beraita],

for it was stated concerning it

to explain it:

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

Rabbi Avin, Rabbi Ilaa, and the entire group

and the entire group

said in the name of Rabbi Yoḥanan

to explain that beraita, that it is discussing

one who slaughters

the stolen animal

through another person,

whom he sent to slaughter it, and the agent slaughtered it on Shabbat or for idolatry; consequently, it is the agent who becomes liable to death,

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

And we raise an objection:

Can it be that this one—

the agent—

sins,

by slaughtering the stolen animal,

while this one—

the thief—

becomes liable

for the fourfold and fivefold payment through his slaughtering!? After all, since “there is no agency for a transgression,” it is impossible to hold the thief liable for the agent’s slaughtering!?

— Rava

said and resolved the matter:

The case here is different,

because

with regard to slaughtering, the Torah revealed that “there is agency for a transgression,”

as

the verse states:

“and he slaughtered it or sold it.”

Just as a sale is performed through another person,

so too slaughtering is performed through another person.

A sale can take place only through two parties: the seller and the buyer;

so too slaughtering is performed through another person.

The school of Rabbi Yishmael taught

another source that there is agency for a transgression in the case of slaughtering. It is stated: “And he slaughtered it or sold it,” and the word

“or”

was stated in order

to include the agent—that is, slaughtering through an agent also renders the sender liable.

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

The school of Ḥizkiyya taught

another source: Since it is stated, “He shall pay five cattle in place of the ox and four sheep in place of the lamb,” the Torah therefore stated

“in place of”;

it did so in order

to include the agent.

Mar Zutra raised an objection

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

Is there such a thing that if he himself had performed the act he would not be liable, but if his agent performed it he is liable

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

If so, since had the sender himself slaughtered the animal on Shabbat or for idolatry he would not have become liable, because of kam lei bidraba minei, it is likewise impossible for the sender to become liable when his agent performed the act!?

Rav Ashi

said and

explained

to Mar Zutra:

There, it is not because he would not be liable, but because kam lei bidraba minei!

And we raise an objection:

But if the case is one who slaughters through another person, what is the reason of the Rabbis, who exempt him!?

That works well if the beraita is discussing the thief himself slaughtering the animal: the dispute between Rabbi Meir and the Sages with regard to slaughtering on Shabbat or for idolatry is then readily understood, as Rabbi Meir maintains that one can die and pay, whereas the Sages maintain that one cannot die and pay. But according to the interpretation stated in the beraita, that the sender himself was not liable for death, but his agent was, what is the reasoning of the Sages who exempt the sender!?

They said,

the students of the yeshiva sought to resolve the matter:

Who are the Sages,

the Sages in the beraita who exempt him—

It is Rabbi Shimon,

who said: An improper slaughtering,

that is, a slaughtering through which the animal is not permitted for consumption—

is not called “

slaughtering”

, nor “slaughtering” in the legal sense of tevicha, and any liability or prohibition that comes about through slaughtering does not apply to it. Therefore, slaughtering on Shabbat, which is an improper slaughtering as the Gemara will explain, and likewise slaughtering for idolatry, in which case the animal is forbidden in consumption and benefit, is not considered slaughtering for purposes of incurring liability for fourfold and fivefold payment.

They said,

the students of the yeshiva objected to this interpretation:

Granted,

slaughtering for

idolatry

is indeed an improper slaughtering.

And

also the slaughtering of

the ox sentenced to be stoned,

for which the Sages in the beraita exempted him from fourfold and fivefold payment, is likewise an improper slaughtering, since an ox sentenced to be stoned is forbidden in benefit.

But

the slaughtering on

Shabbat

performed by the agent—for what reason did the Sages exempt him? Is it not

a proper slaughtering!?

For

so

we learned: One who slaughters on Shabbat or on Yom Kippur, even though he

is

liable for his life [

liable to receive death for Shabbat and liable to karet for Yom Kippur],

his slaughtering is valid

and the meat is permitted for consumption!

They said,

the students of the yeshiva sought to resolve the matter:

He holds—

Rabbi Shimon—

in accordance with Rabbi Yoḥanan the Sandalmaker,

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

As we learned: One who cooks on Shabbat:

If he cooked

inadvertently—

he may eat

the food, even the one who cooked it, and even on Shabbat.

And if he cooked

intentionally,

the one who cooked it himself

may not eat

the food ever; and the same law applies, that others may not eat it.

The statement of Rabbi Meir.

Rabbi Yehuda says:

If he cooked

inadvertently,

the one who cooked it may not eat it immediately; rather, he

may eat

the food

after Shabbat

once the period of “the time necessary to prepare it” has elapsed, that is, the amount of time in which it could have been cooked had he not cooked it on Shabbat. This is because Rabbi Yehuda penalizes an inadvertent act on account of an intentional one. But on Shabbat, neither he nor others may eat it.

And if he cooked

intentionally,

he

may not eat

it—the one who cooked it—

ever,

but others may eat it after Shabbat.

Rabbi Yoḥanan the Sandalmaker says:

If he cooked

inadvertently,

the food

may be eaten after Shabbat by others

only,

but not by him,

who transgressed and cooked it.

And if he cooked

intentionally,

the food

may never be eaten, neither by him

who transgressed and cooked it

nor by others,

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

It follows that according to Rabbi Yoḥanan the Sandalmaker, one who intentionally slaughters on Shabbat has not performed a proper slaughtering that permits the animal for consumption, since according to his view it is forbidden forever and to everyone. And the Sages who exempt one from fourfold and fivefold payment for an ox slaughtered on Shabbat hold in accordance with Rabbi Yoḥanan the Sandalmaker.

The Gemara explains:

What is the reason of Rabbi Yoḥanan

the Sandalmaker,

who maintains that an act performed on Shabbat is forbidden for consumption?

As Rabbi Ḥiyya expounded at the entrance of the house of the Nasi [

as Rabbi Ḥiyya expounded at the entrance of the Nasi’s house]:

It is written in the Torah: “

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

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

Just as that which is holy is forbidden in consumption, so too acts performed on Shabbat are forbidden in consumption.

You might say:

Just as that which is holy is forbidden in benefit, so too acts performed on Shabbat are forbidden in benefit.

Therefore

the Torah states: “For it is holy”

“to

you,”

and “to you” indicates that

it shall be yours

to derive benefit from.

One might have thought even

if he cooked

inadvertently,

it would be forbidden in consumption like that which is holy, both to him and to others.

The Torah states: “You shall observe Shabbat, for it is holy to you;

those who profane it

shall surely be put to death,”

indicating that Scripture is speaking of one who acted intentionally, and Scripture teaches:

It is intentionally

that I

told you

that an act performed on Shabbat should be like that which is holy,

but not inadvertently.

They disagree about it—

regarding the explanation of Rabbi Yoḥanan the Sandalmaker’s position—

Rav Aḥa and Ravina!

One

of them

said: An act performed on Shabbat

is forbidden by

Torah law.

And one

of them

said: An act performed on Shabbat is forbidden only by

rabbinic law.

The Gemara explains the reasoning of each one:

The one who says

that an act performed on Shabbat is forbidden by

Torah law

according to Rabbi Yoḥanan the Sandalmaker explains that his reason is

as we said,

that it is derived from the verse, “It is holy to you.”

And

the one who says

that an act performed on Shabbat is forbidden only by

rabbinic law,

his reason is:

Because

the verse says: It is holy,

Scripture teaches by saying “it is”:

it

is Shabbat

that is holy, but its acts are not holy,

and it was the Sages who prohibited acts performed on Shabbat.