this gives me the rule only as applying to his hand. Whence do I learn that it applies to his roof, his courtyard and his enclosure? It distinctly lays down: If to be found it be found [i.e.] in all places'?1 — But if so2 the text should have said either 'if to be found, to be found', or 'if it be found, it be found'?3 The variation in the text4 enables us to prove two points from it.
The above text states: 'Rab said: "The principal is reckoned as at the time of the theft,"5 whereas double payment or four-fold and five-fold payments are reckoned on the basis of the value when the case was brought into Court.' What was the reason of Rab? — Scripture says 'theft' and 'alive'. Why does Scripture say 'alive' in the case of theft? [To imply] that I should resuscitate the principal in accordance with its value at the time of theft.6 Said R. Shesheth: I am inclined to say that it was only when he was half asleep on his bed7 that Rab could have enunciated such a ruling.8 For it was taught: [If a thief misappropriated] a lean animal and fattened it, he has to pay the double payment or four-fold and five-fold payments according to the value at the time of theft. [Is this not a contradiction to the view of Rab?]9 — It might, however, be said [that the thief has to pay thus] because he can say, 'Am I to fatten it and you take it?'10
Come and hear: [If a thief misappropriated] a fat animal and caused it to become lean, he has to pay double payment or fourfold and five-fold payments according to the value at the time of theft. [Does this not contradict the ruling enunciated by Rab?]11 — There also [the thief has to pay thus] because we argue against him 'What is the difference whether you killed it altogether or only half-killed it.'12 But the ruling enunciated by Rab11 had reference to fluctuations in price. How are we to understand this? If we assume that it was originally worth one zuz and subsequently worth four zuz, would the statement 'the principal will be reckoned as at the time of theft not lead us to suppose that Rab differs from Rabbah? For Rabbah said:13 If a man misappropriated from his fellow a barrel of wine which was then [worth] one zuz but which became subsequently worth four zuz, if he broke it or drank it he has to pay four,14 but if it broke of itself he has to pay one zuz.15 [Would Rab really differ from this view?]16 — It may however, be said that Rab's rule applied to a case where, e.g., it was at the beginning worth four [zuz] but subsequently worth one [zuz], in which case the principal will be reckoned as at the time of theft, whereas double payment or four-fold and five-fold payments will be reckoned on the basis of the value when the case came into Court. R. Hanina learnt in support of the view of Rab: If a bailee advanced a plea of theft regarding a deposit and confirmed it by oath but subsequently admitted his perjury and witnesses appeared and testified [to the same effect], if he confessed before the appearance of the witnesses, he has to pay the principal together with a fifth and a trespass offering;17 but if he confessed after the appearance of the witnesses, he has to pay double payment18 together with a trespass offering;19 the fifth, however, is replaced by the doubling of the payment.20 So R. Jacob.
Baba Kamma 65b
The Sages, however, say: [Scripture says] In its principal and the fifth part thereof,1 [implying that it is only] where money is paid as principal that a fifth has to be added, but where the money is not paid as principal2 no fifth will be added.3 R. Simeon b. Yohai says: No fifth or trespass offering is paid in a case where there is double payment.4 Now it is said here that 'the fifth is replaced by the doubling of the payment;' this being the view of R. Jacob. How are we to understand this? If we say it was at the beginning worth four and subsequently similarly worth four, how could the fifth be replaced by the doubling of the payment when the doubling of the payment amounts to four and the fifth to one?5 Does it therefore not refer to a case where at the beginning the value was four but subsequently fell to one zuz, so that the doubling of the payment is one zuz6 and the fifth of the payment is also one zuz,5 proving thereby that the principal will be reckoned as at the time of theft, whereas double payment or four-fold and five-fold payments will be reckoned on the basis of the value when the case comes into court? — Raba thereupon said: It could still be maintained that at the beginning it was worth four and now it is similarly worth four, for as to the difficulty with respect to the doubling of the payment being four and the fifth of the payment one zuz,5 it might be said that [we are dealing here with a case] where e.g., he took an oath and repeated it four times, after which he confessed, and as the Torah says 'and its fifths',7 the Torah has thus assigned many fifths to one principal.8
The Master stated: 'The Sages however say: [Scripture says] In its principal and the fifth part thereof [implying that it is only] where money is paid as principal that a fifth has to be added, but where the money is not paid as principal, no fifth will be added.' The trespass offering will nevertheless have to be brought. Why this difference? If he has not to pay the fifth because it is written, In its principal and the fifth part thereof, why should he similarly not have to pay the trespass offering seeing it is written, In its principal and the fifth part thereof … and his trespass offering?9 — The Rabbis might say to you that by the particle 'eth' [occurring before the term denoting his trespass offering]10 Scripture separates them.11 And R. Simeon b. Yohai?12 — He maintains that by the 'waw' [conjunctive placed before the particle] 'eth' Scripture combines them.13 And the Rabbis? — They may say that if this is so, the Divine Law should have inserted neither the 'waw' nor the 'eth'. And R. Simeon b. Yohai? — He might rejoin that as it was impossible for Scripture not to insert 'eth' so as to make a distinction between a chattel due to Heaven14 and money due to ordinary men,15 it was therefore necessary to add the 'waw' so as to combine the verses.
R. Elai said: If a thief misappropriates a lamb and it grows into a ram,16 or a calf and it grows into an ox,16 as the article has undergone a change17 while in his hands he would acquire title to it,18 so that if he slaughters or sells it, it is his which he slaughters it is his which he sells.19 R. Hanina objected to R. Elai's statement [from the following teaching]: If he misappropriates a lamb and it grows into a ram,16 or a calf and it grows into an ox,16 he will have to make double payment or four-fold and five-fold payments reckoned on the basis of the value at the time of theft. Now, if you assume that he acquires title to it by the change, why should he pay?20 Is it not his which he slaughtered, is it not his which he sold? — He replied:21 What then [is your opinion]? That a change does not transfer ownership? Why then pay on the basis of the value at the time of theft22 and not of the present value?23 — The other replied:24 He does not pay in accordance with the present value for the reason that he can say to him,25 'Did I steal an ox from you, did I steal a ram from you?' Said the other:21 'May the All-Merciful save me from accepting this view!' The other one retorted,24 'May the All-Merciful save me from accepting your view.'26 R. Zera demurred saying: Why should he not indeed acquire title to it through the change in name?27 Raba, however, said to him: An ox one day old is already called 'ox', and a ram one day old is already called 'ram'. 'An ox one day old is called "ox",' as written: When an ox or a sheep or a goat is born.28 'A ram one day old is called "ram",' as written: And the rams of thy flocks have I not eaten.29 Does he mean that it was only the rams that he did not eat, and that he did eat the sheep? [Surely not!] — This shows that a ram one day old is already called 'ram'. But all the same does the objection raised against R. Elai30 still not hold good? — R. Shesheth thereupon said: The teaching [of the Baraitha] is in accordance with the view of Beth Shammai, that a change leaves the article in the previous position and will accordingly not transfer ownership, as taught:31 If he gave her [the harlot] as her hire wheat of which she made flour, or olives of which she made oil, or grapes of which she made wine, it was taught on one occasion that 'the produce is forbidden [to be sacrificed upon the altar],'32 whereas on another occasion it was taught 'it is permitted',33 and R. Joseph said: Gorion of Aspurak34 learnt: 'Beth Shammai prohibit [the produce to be used as sacrifices],35 whereas Beth Hillel permit it.' Now, what was the reason of Beth Shammai? — Because it is written 'Gam',36 to include their transformations.37 But Beth Hillel maintain that [the suffix them]38 implies 'them',39 and not their transformations. And Beth Shammai? — They maintain that the suffix
- To Next Folio -