Bava Kamma 78b — the Talmud in English

And we explain:

Yes, for we hold ![](pamud.bmp "

exact page location")

that which has passed beyond the enclosure is like Rabbi Shimon.

That is to say: The verse did not come to exclude a truly impure animal that mated with a pure animal and the latter gave birth to an impure animal, for they do not conceive from one another. Rather, the verse excludes a pure animal that Rabbi Shimon calls “impure.” As will be explained, if a pure animal conceived from it and gave birth to an “impure” animal like it, then 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” one, whose impure offspring born to the pure animal we are coming to exclude, is the kelut—that is, an animal whose hooves are cloven together and not split, but which chews its cud —that was born to a pure father and mother who 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 has at least one sign of purity. And “a sheep” comes to teach that if this kelut mated with a pure animal and gave birth to a kelut, then 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 one, whose father has only one sign of purity, is not called a sheep, and its offspring is impure.

Rava inquired

according to Rabbi Shimon, who obligates [the thief in] double payment and fourfold and fivefold payment for one who steals consecrated animals from their owners, because “that which causes monetary liability is regarded as money”:

One who says:

“It is incumbent upon me

to bring an offering,

a burnt offering,”

but did not specify from what he would bring his burnt offering,

and designated an ox

for his vow,

and another came and stole it

from the property of its owner,

what

is the law of the thief’s payments according to Rabbi Shimon, who obligates him?

Does the thief exempt himself with a sheep [

can the thief exempt himself by paying a sheep]—

according to

the opinion of

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

the opinion of

Rabbi Eleazar ben Azariah,

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 sides of the uncertainty are explained in the Gemara below.

As we learned:

One who says:

“It is incumbent upon me

to bring an offering,

a burnt offering,”

but did not specify from what he would bring it,

shall bring a sheep

for his vow, and not a bird burnt offering.

Rabbi Eleazar ben Azariah says: He shall bring

even

one turtledove

,

or one

young pigeon, and he has fulfilled his vow?

And if so,

what

is the law of 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 sides of the uncertainty:

Do we say:

After all,

the owners accepted upon it the name “burnt offering”

for

upon it, and the thief need pay him only enough for him to fulfill his vow, which was an unspecified burnt offering; and it suffices for him to bring a sheep or a bird burnt offering.

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

Or perhaps: He can say to him

the owner to the thief: “

I seek to obtain the mitzva in the choicest manner,”

I wish to bring specifically an ox for the mitzva in the choicest manner.

After Rava had inquired,

Rava

then resolved it

Rava himself:

He

can exempt himself with a sheep according to the Rabbis,

and

with a bird burnt offering according to Rabbi Eleazar ben Azariah.

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

he would teach a statement concerning this law in the name of Rava, and not as an inquiry and resolution; and this is how he would teach it:

Rava said:

One who says: “

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

and designated an ox, and another 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 Eleazar ben Azariah.

Mishna:

If he sold it

the ox or sheep that the thief 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 from his fellow, and the slaughter or sale was not entirely unlawful; yet the Torah said “and he slaughtered it or sold it,” implying that the slaughter of the entire ox or its sale was unlawful.

Or

if he slaughtered it and it became an animal carcass

the animal

in his hand,

for this is not “slaughtering.”

And likewise

one who tears the throat,

who kills the animal by tearing it from its nostrils to its heart, for this too is not included in “slaughtering.”

And

likewise

one who uproots,

who kills the animal by uprooting the identifying signs—in all these cases the thief

pays the double payment, but does not pay the fourfold and fivefold payment.

Gemara:

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

And we explain:

What is

“except for one one-hundredth of it,”

for it is obvious that not every individual part of the animal constitutes a retention sufficient to exempt him; with regard to what did they say that if he retained even one one-hundredth of it, it is a retention?

Rav and Levi disagreed about this:

Rav said:

For example, he sold it

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

even one one-hundredth of it. That is: he is exempt only if he retained a portion that is eaten and that slaughter permits; excluding one who sells it except for its hide, or except for its horns, or except for its wool, who is liable.

And Levi said:

Even if he sold all of it

except for its wool,

it is a retention, since in the end he did not sell all of it.

And likewise—according to Levi’s view—

in accordance with Levi’s view—

it was taught in a baraita

in the beraita:

except for its wool.

He raises an objection

to Rav from that which was taught:

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 the fourfold and fivefold payment.

Rabbi says:

If he retained in the sale

something that impedes slaughter,

that is: something which, if removed from the animal, causes the animal thereby to become a carcass while alive,

he does not pay the fourfold and fivefold payment;

but if he retained something

that does not impede slaughter,

then he

pays the fourfold and fivefold payment.

Rabbi Shimon ben Elazar says:

If he sold all of it, even

except for its horn,

which is something not permitted through slaughter,

he does not pay the fourfold and fivefold payment,

since its horn is a part of it that is not destined to be shorn, as is explained below.

But if he sold all of it

except for its wool,

which is destined to be shorn, then he

pays the fourfold and fivefold payment.

Granted, according to Levi—

who holds that even except for its wool is not a sale—this beraita is not difficult, for he holds

like the first tanna.

But according to Rav—

who holds that a retention in a sale is when he retains something permitted along with it through slaughter—this is difficult:

like whom

among these tannaim is his method? That is: his words accord with none of them!?

They said

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

Rav stated [his view] like this tanna,

who follows a fourth method,

as it was taught: Rabbi Shimon ben Elazar

says:

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

because they are things 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 the fourfold and fivefold payment.

The Gemara explains the positions of all four tannaim who were mentioned:

Over what do they disagree

what is the reasoning of each one?

The first tanna—

who holds that even wool constitutes a retention—

held:

“We require ‘and he slaughtered it all’

and we require

‘and he sold it’

all of it,

and when he retains even the wool, there is no sale of the entire animal.

And Rabbi—

who holds that only something that impedes slaughter constitutes a retention—

held: It is something that is involved in slaughter,

that is: that part of the animal with regard to which one cannot become liable for slaughter unless he slaughters it, for if it is removed, the animal is a carcass and the name of slaughter does not apply to the animal; only that part constitutes a retention with regard to a sale.

To exclude something that is not included in the slaughter

[to exclude something that is not necessarily included in the slaughter], which is not a remnant even if he did not sell it —

And because

“and sold it”

is analogous to

“and slaughtered it.”

And Rabbi Shimon ben Elazar —

who distinguishes between the horn and the shearing —

held

that one should not expound “he sold it analogous to and slaughtered it,” but rather, “and he sold all of it is required”; nevertheless:

A remnant of

its horn, which is not destined to be cut

[it is not destined for cutting],

is a remnant, and he does not pay the fourfold and fivefold payment;

but a remnant of

its shearing,

since

it is destined to be shorn

[it stands to be shorn],

is not a remnant, and he pays

the thief

the fourfold and fivefold payment.

And the other tannaitic teaching of the school of Rabbi Shimon ben Elazar —

which holds: “a matter that becomes permitted together with it through slaughter” —

held

“and he sold it analogous to and slaughtered it,” but this is how it is expounded:

Its hands and feet, which require slaughter, are a remnant, and he does not pay the fourfold and fivefold payments; its horns and its shearing, which do not require slaughter, are not a remnant.

And we raise an objection:

The statement of Rabbi Shimon ben Elazar

in the first beraita, in which he disagreed with the first tanna and Rabbi,

against Rabbi Shimon ben Elazar

in the second beraita!?

And we answer:

There are two tannaim, and [their statements are] according to Rabbi Shimon ben Elazar,

[that is,] tannaim disagreed as to what Rabbi Shimon ben Elazar’s position is.

The Sages taught:

One who steals a maimed female animal

[whose hand or leg was severed] and slaughters or sells it, so that he is found to have slaughtered or sold the entire theft, but this is not the slaughter or sale of a whole ox —

And

so too one who slaughters or sells

the lame female animal

[a limping one],

and the blind one —

And likewise

a third person,

who steals

the

animal belonging to partners

and slaughters or sells it —

In all these cases, he is

liable

for the fourfold and fivefold payment.

And

these are

partners who stole,

as it proceeds to explain, and they are

exempt.

And we raise an objection to the final clause of the beraita, which exempts partners who stole:

But it was taught

in another beraita:

Partners who stole

are

liable.

Rav Naḥman said: It is not difficult,

for

here —

the beraita that exempts partners who stole — deals

with a partner who stole from his fellow,

for here there is not “and slaughtered it entirely in violation,” as we learned in the Mishna, that if he has a partnership in it, he is not liable.

Here —

the beraita that renders partners who stole liable —

deals with a partner who stole from elsewhere,

that is: two people who stole an animal from another person and slaughtered or sold it.

Rava raised an objection to Rav Naḥman

from that which was taught:

Could it be that a partner who stole from his fellow, and

likewise

partners who stole,

and one of them slaughtered it,

should be liable!?

Therefore

the verse says:

“and slaughtered it”

— all of it is required, and there is not [such a case].

It is thus explicit that “partners who stole” and “a partner who stole from his fellow” are two different matters, and not like Rav Naḥman, who explains “partners who stole” as meaning a partner who stole from his fellow.

Rather, Rav Naḥman said:

Indeed, both beraitot deal with two people who stole an animal from another person, and one slaughtered it; nevertheless

it is not difficult,

for:

Here —

the beraita that renders the partners who stole liable when one of them slaughtered it — deals

with a partner who slaughtered it with the knowledge of his fellow,

that is: as his fellow’s agent, and it follows that the entire slaughter was in violation of the prohibition of theft.

Here —

the beraita that exempts the partners when one of them slaughtered it — deals

with a partner who slaughtered it without the knowledge of his fellow,

and it follows that there was liable slaughter only with regard to half the animal: concerning his fellow’s portion, he was not made an agent; and concerning what he slaughtered of his fellow’s portion, he cannot be held liable, since his fellow had already stolen it first, and one who slaughters after the thief is not liable, as explained in the Mishna at the beginning of the chapter; and it follows that here there is no “and slaughtered it entirely in violation.”

Rabbi Yirmeya raised a question:

If he sold it

the thief

except for thirty days,

which he retained for himself, that is: “For thirty days I shall perform work with it” — or if he sold it

except for its labor

forever.

Or if he sold it

except for its fetus —

In all these cases,

what

is the law: will he be liable for this sale for the fourfold and fivefold payment?

And the Gemara explains the uncertainty with regard to one who says, “except for its fetus”:

According to the one who says:

The fetus

is

like its mother’s thigh,

you need not ask, for he did in fact retain part of it, since when he retains the fetus, this is a remnant in the body of the animal, because “the fetus is like its mother’s thigh.”

ведь если он оставляет плод, это является оставлением части тела животного, поскольку «плод — это бедро своей матери».

When you do need to ask: according to the one who says that

the fetus is not like its mother’s thigh, and according to him one must inquire:

», и согласно этому мнению следует выяснить:

what

will its law be with regard to the fourfold and fivefold payment?

The sides of the uncertainty are:

Whether

we say: since

in the end

the fetus is attached

to it,

it is a remnant; or perhaps: since it is destined to separate from it

[since the fetus is destined to leave it],

it is not a remnant.

Some say

to explain the sides of the uncertainty:

Whether we say:

since

it is not like its mother’s thigh

it is not a remnant; or perhaps: since it must be permitted together with it through slaughter,

[since the fetus has no permission except through the slaughter of its mother],

it is considered as though he retained part of its body,

[as though he retained part of the mother’s body].

And we conclude:

Teyku!

Rav Pappa raised a question: He stole it

and afterward

severed it and sold it,

what

is the law: may he be held liable for the fourfold and fivefold payment?

And the Gemara explains the sides of the uncertainty:

Do we say: What he stole, that he did not sell

[the thief did not sell the entire theft], and here there is no “and he sold it all”?

Or perhaps: What he sold, that he did not retain

[there was no remnant in the sale], for this is the entire animal, and we apply to it “and he sold it all.”

And we conclude:

Teyku!

The Sages taught:

If he stole and gave it to another

to slaughter it,

and [the latter] slaughtered it,

the agent —

Or if he

stole and gave it to another

to sell it,

and [the latter] sold it,

the agent —