Bava Kamma 78b (עח:) — the Talmud in English

And we answer:

Yes, for we hold

that if it passed through the enclosure, it is according to Rabbi Shimon.

That is to say: The verse did not come to exclude an actually impure animal that mated with a pure animal and produced an impure offspring, since such animals cannot conceive from one another. Rather, the verse excludes a pure animal whom Rabbi Shimon calls “impure.” As will be explained, if a pure animal conceived from it and gave birth to an “impure” offspring like it, even Rabbi Yehoshua, who disagrees and holds that its father is “pure,” concedes with regard to its offspring, when it is like it, that it is “impure.”

And this “impure” animal whose impure offspring born from the pure animal we are coming to exclude is the kelut—that is, an animal whose hooves are joined and not split, but which chews its cud — that was born to a pure father and mother, both of whom possess the two signs of purity. According to Rabbi Shimon it is impure, whereas according to Rabbi Yehoshua it is pure, because it was born from pure animals and at least possesses one sign of purity. And “sheep” comes to teach that if this kelut mated with a pure animal and produced a kelut, its offspring is not pure. This is because it is stated: “a sheep of the sheep and a sheep of the goats,” meaning that it must be born from two sheep, whose father and mother are sheep; and this animal, whose father has only one sign of purity, is not called a sheep, so its offspring is impure.

Rava raised a dilemma

with regard to the opinion of Rabbi Shimon, who obligates one to pay double payment and fourfold or fivefold payment for stealing consecrated animals from their owners, because “anything that causes monetary benefit is considered money”:

If one says: “

It is incumbent upon me

to bring an offering,

a burnt-offering,”

but did not specify of what animal he would bring his burnt-offering,

and he designated an ox

for his vow,

and another person came and stole it

from its owner,

what

is the law concerning the thief’s payment? According to Rabbi Shimon, who obligates him?

Can the thief exempt himself by paying a sheep

—can the thief exempt himself by paying a sheep—

according

to

the Rabbis,

who hold that the owners themselves must bring a sheep for their vow, and not a bird burnt-offering, but nevertheless a sheep suffices for them and they need not bring an ox—

and can the thief exempt himself

with a bird burnt-offering, according

to

Rabbi Elazar ben Azarya,

who holds that the owners can exempt themselves even with a bird burnt-offering?

Or perhaps: Since he stole an ox, must he pay an ox? The two sides of the dilemma are explained below in the Gemara.

As we learned:

One who says, “

It is incumbent upon me

to bring an offering,

a burnt-offering,”

but did not specify of what animal he would bring it,

must bring a sheep

for his vow, and not a bird burnt-offering.

Rabbi Elazar ben Azarya says: He may bring

even

one turtledove

or

one pigeon,

and thereby fulfill his vow.

And if so,

what

is the law concerning the thief, when he stole an ox that had been designated for a burnt-offering that he had accepted upon himself without specification?

The Gemara explains the two sides of the dilemma:

Do we say:

The owner has accepted

the designation “burnt-offering”

upon

it,

and the thief need pay him only enough for him to fulfill his unspecified vow of a burnt-offering, in which case it suffices for him to bring a sheep or a bird burnt-offering?

Or perhaps: He can say to him

the owner can say to the thief: “

I seek to fulfill the mitzva in the optimal manner,”

as I wish specifically to bring an ox in order to fulfill the mitzva in the optimal manner.

After Rava raised the dilemma

Rava

then resolved it

Rava himself:

The

thief can exempt himself with a sheep according to the Rabbis,

and

with a bird burnt-offering according to Rabbi Elazar ben Azarya.

Rav Aḥa, son of Rav Ika, taught it explicitly,

He would transmit a statement concerning this law in the name of Rava, rather than as a dilemma and its resolution; and this is how he would transmit it:

Rava said:

One who says: “

It is incumbent upon me to bring a burnt-offering,”

and designated an ox, and another person came and stole it

from him, the

thief can exempt himself with a sheep, according to the Rabbis; and with a bird burnt-offering, according to Rabbi Elazar ben Azarya.

Mishna:

If he sold

the ox or sheep that he had stolen,

except for one one-hundredth of it,

which he retained for himself,

or if he had

the thief

in it

in the ox or sheep

a partnership

before the theft, that is, a partner who stole it from his fellow, so that the slaughter or sale was not entirely unlawful; yet the Torah said, “and he slaughtered it or sold it,” implying that the slaughter or sale of the entire ox was unlawful,

Or

if he slaughtered it and it became an unslaughtered carcass

the animal

in his hand,

for this is not “slaughtering.”

And likewise

one who kills it by tearing its nostrils,

who kills the animal by tearing it from its nostrils to its heart,

for this is not included in “slaughtering.”

And

likewise one who uproots

the animal, killing it by uprooting the identifying organs—in all these cases the thief

pays double payment, but does not pay fourfold or fivefold payment.

Gemara:

We learned in the Mishna: If he sold it except for one one-hundredth of it:

And we explain:

What

does “except for one one-hundredth of it”

mean? For it is obvious that retaining any and every part of the animal is sufficient retention to exempt him; what did they mean by saying that if he retained even one one-hundredth of it, it is considered retention?

Rav and Levi disagreed concerning this:

Rav said:

For example, he sold it

except for something that is permitted along with it through slaughter,

even if it is only one one-hundredth of it. That is, he is exempt only if he retained a part that is edible and is permitted by slaughter, excluding one who sold it except for its hide, or except for its horns, or except for its wool; in those cases he is liable.

And Levi said:

Even if he sold it all

except for its wool,

it is considered retention, since ultimately he did not sell the entire animal.

And likewise—in accordance with Levi’s view—

in accordance with Levi’s view—

it is taught in a baraita

[in a beraita]:

except for its wool.

The following objection was raised

against Rav from that which was taught in a beraita:

If he sold

the stolen animal

except for its hand, except for its leg,

or even

except for its horn,

and even

except for its wool, he does not pay fourfold or fivefold payment.

Rabbi says:

If he retained in the sale

something that prevents slaughter,

that is, something whose removal would cause the animal to become an unslaughtered carcass while still alive,

he does not pay fourfold or fivefold payment;

whereas if he retained something

that does not prevent slaughter,

then he

does pay fourfold or fivefold payment.

Rabbi Shimon ben Elazar says:

If he sold it all, even

except for its horn,

which is something not permitted through slaughter,

he does not pay fourfold or fivefold payment,

since its horn is a part of the animal that is not destined to be cut off, as will be explained below.

But if he sold it all

except for its wool,

which is in fact destined to be cut off, then he

pays fourfold or fivefold payment.

Granted, according to Levi—

who holds that even retaining its wool prevents the sale from being considered a sale of the entire animal—this beraita poses no difficulty, since he holds

like the first tanna.

But according to Rav—

who holds that retention in a sale means retaining something permitted along with it through slaughter—the difficulty arises:

In accordance with whom

is his view among these tannaim? In other words, his view accords with none of them!?

They said,

the members of the academy, to reconcile Rav’s view:

Rav spoke in accordance with this tanna

who follows a fourth approach

! As it is taught: Rabbi Shimon ben Elazar

says:

If he sold it except for its hand or except for its leg, he does not pay fourfold or fivefold payment,

because these are parts permitted along with it through slaughter; but if he sold it

except for its horn,

and all the more so

except for its wool,

which are not permitted along with it through slaughter, then he

pays fourfold or fivefold payment.

The Gemara explains the basis of all four approaches of the tannaim mentioned:

With regard to what do they disagree

[what is the reasoning of each one]?

The first tanna—

who holds that even retaining the wool is considered retention—

holds: “

We require ‘and he slaughtered it all’,” and “

is required, and

and sold it

all is required”;

when he retains even the wool, the entire animal has not been sold.

And Rabbi—

who holds that only something that prevents slaughter is considered retention—

holds: It is analogous to what is subject to slaughter,

meaning: Only that part of the animal with regard to which he could not become liable for slaughter unless he slaughtered it—for if it were removed, the animal would be an unslaughtered carcass and the animal would not be subject to slaughter—is considered retention with regard to a sale.

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