Babylonian Talmud: Tractate Baba Kamma

Folio 104a

since he made a voluntary admission'?¹  — Raba therefore said: The case of our Mishnah is different altogether, for since he knows whom he robbed and in fact has admitted it, so that it is possible to restore the misappropriated value to the owner, it is considered as if the plaintiff had said to him: Let it [for time being] be in your possession. It is therefore only in the case where an oath was taken that though [it is considered as if] he said to him: Let it [for time being] be in your possession, yet since the robber is in need of atonement,²  this is not sufficient until it actually comes into the plaintiff's hands, whereas where no oath was taken, the misappropriated article is considered as a deposit with him until the owner comes and takes it.³

HE MAY GIVE IT NEITHER TO HIS SON NOR TO HIS AGENT. It was taught: Where an agent was appointed in the presence of witnesses [to receive some payment of money] R. Hisda said that he would be a [properly accredited] agent,⁴  but Rabbah said that he is still not an agent [to release the payer of responsibility]. R. Hisda said that he would be a [properly accredited] agent, for it was for this purpose that he took the trouble to appoint him in the presence of witnesses, so that he should stand in his place.⁴  But Rabbah said that he is still not an agent [to release the payer of responsibility], for he meant merely to state that this man is honest and if you are prepared to rely upon him you may rely, and if you are prepared to send the payment through him you may send it through him.⁵

We have learnt: If one [agreed to] borrow a cow and the lender sent it by the hand of his son or by the hand of his slave or by the hand of his agent, or even by the hand of the son or by the hand of the slave or by the hand of the agent of the borrower, and it so happened that it died on the way, he would be exempt.⁶  Now, how are we to picture this agent?⁷  If he was not appointed⁸  in the presence of witnesses, whence could we know that he was an agent at all? Must it therefore not be that he appointed him in the presence of witnesses and it is nevertheless stated that the [would-be] borrower is exempt, in contradiction to the view of R. Hisda? — It is as R. Hisda [elsewhere]⁹  said, that he was a hireling or a lodger of his;¹⁰  so also here he was a hireling or a lodger of his.¹⁰

We have learnt: HE MAY GIVE IT NEITHER TO HIS SON NOR TO HIS AGENT.¹¹  How are we to picture this agent? If he did not appoint him in the presence of witnesses, whence could we know that he was appointed an agent at all? Does it therefore not mean that he appointed him in the presence of witnesses?¹²  — R. Hisda however interpreted it as referring to a hireling or a lodger.¹⁰  But what would be the law where the agent was appointed in the presence of witnesses? Would he indeed have to be considered a [properly accredited] agent?¹³  Why then state in the concluding clause, HE MAY GIVE IT TO THE SHERIFF OF THE COURT OF LAW, and not make the distinction in the same case by saying that these statements refer only to an agent who was not appointed in the presence of witnesses, whereas if the agent was appointed in the presence of witnesses he would indeed be considered a [properly accredited] agent?¹⁴  — It may, however, be said that on this point [the Tanna] could not state it absolutely. Regarding the sheriff of the Court, no matter whether the plaintiff authorised him or whether the robber authorised him, he could state it absolutely that he is considered a [properly accredited] agent, whereas regarding an agent appointed in the presence of witnesses who if he were appointed by the plaintiff would be considered an agent, but if appointed by the robber would certainly not be a valid agent, he could not State it so absolutely.¹⁵  This would indeed be contrary to the view of the following Tanna, as taught: R. Simeon b. Eleazar says: If the sheriff of the Court of Law was authorised by the plaintiff [to receive payment] though not appointed by the robber [to act on his behalf], or if he was appointed by the robber [to act on his behalf] and the plaintiff sent and received the payment out of his hands, there would be no liability in the case of accident.¹⁶

R. Johanan and R. Eleazar both said that an agent appointed in the presence of witnesses would be a [properly accredited] agent;¹⁴  for if you raise an objection from the ruling in our Mishnah,¹⁷  [it might be answered] that the agent there was [not appointed but] placed at his¹⁸  disposal, as where he said to him,¹⁹  'There is some money owing to me from a certain person who does not forward it to me. It may therefore be advisable for you to be seen by him, since perhaps he has found no one with whom to forward it,'²⁰  or as explained by R. Hisda, that he was a hireling or a lodger of his.²¹

Rab Judah said that Samuel stated that

1. Tosaf. Yeb. XIV, 3; B.M. 37b.
2. Cf. Lev. V, 24-25.
3. The Mishnah may thus be in agreement with either R. Akiba or R. Tarfon.
4. And if some accident should happen with the money whilst still in his hands the payer would not be responsible
5. But the money will still be in the charge of the payer.
6. B.M. VIII, 3.
7. Of the would-be borrower.
8. By the would-be borrower.
9. V. the discussion which follows.
10. But not a duly accredited agent by law; cf. Shebu. 46b.
11. Supra 103a.
12. [And yet the robber is not released, by handing it over to him, from responsibility, which contradicts R. Hisda.]
13. Even to the extent of having handed over to him by the robber the misappropriated article.
14. V. previous note.
15. Lit., 'it was not decided with him.'
16. Cf. Tosef. X, 5. Proving that where it was the robber who appointed the sheriff, so long as the payment did not reach the plaintiff, the robber is not yet released from responsibility, as against the interpretation of the Mishnah releasing the robber in such a case.
17. V. p. 603. n. 7.
18. I.e., the robber's.
19. I.e., to the agent.
20. Such a request is by no means sufficient to render him an agent.
21. Supra ibid.

it is not right to forward [trust] money through a person whose power of attorney is authenticated by a mere figure,¹  even if witnesses are signed on it [to identify the authentication]. R. Johanan, however, said: If witnesses are signed on it [to identify the authentication] it may be forwarded. But I would fain say: In accordance with the view of Samuel what remedy is available?²  — The same as in the case of R. Abba,³  to whom money was owing from R. Joseph b. Hama,⁴  and who therefore said to R. Safra:⁵  'When you go there, bring it to me,' and it so happened that when the latter came there, Raba the son [of the debtor] said to him, 'Did the creditor give you a written statement that by your accepting the money he will be deemed to have received it?'⁶  and as he said to him, 'No,' he rejoined, 'If so, go back first and let him give you a written statement that by your acceptance he will be deemed to have received the money.'⁶  But ultimately he said to him, 'Even if he were to write that by your acceptance he will be deemed to have received the money,⁶  it would be of no avail, for before you come back R. Abba might perhaps [in the meantime] have died,⁷  and as the money would then already have been transferred to the heirs the receipt executed by R. Abba would be of no avail.'⁸  'What then,' he asked, 'can be the remedy?' — 'Go back and let him transfer to you the ownership of the money by dint of land,⁹  and when you come back you will give us a written acknowledgment that you have received the money.'¹⁰  as in the case of R. Papa¹¹  to whom twelve thousand zuz were owing from men of Be-Huzae¹²  and who transferred the ownership of them to Samuel b. Abba¹³  by dint of the threshold of his house,⁹  and when the latter came back the former [was so pleased that he] went out to meet him as far as Tauak.¹⁴

IF HE REFUNDED HIM THE PRINCIPAL BUT DID NOT PAY HIM THE FIFTH … HE WOULD NOT HAVE TO GO AFTER HIM [FOR THAT]. This surely proves that the Fifth is a civil liability,¹⁵  so that were the robber to die¹⁶  the heirs would have to pay it. We have also learnt: IF HE REFUNDED TO HIM FOR THE PRINCIPAL AND TOOK AN OATH REGARDING THE FIFTH, HE WOULD HAVE TO PAY HIM A FIFTH ON TOP OF THE FIFTH, similarly proving that the Fifth is a civil liability. It was moreover taught to the same effect: If one man robbed another but took an oath [that he did not do so] and [after admitting his guilt he] died, the heirs would have to pay the principal and the Fifth, though they would be exempt from the trespass offering. Now, since heirs are subject to pay the Fifth which their father would have had to pay, [it surely proves that the Fifth is a civil liability which has to be met by heirs]. But a contradiction could be raised [from the following]: 'I would still say that the case where an heir has not to pay the Fifth for a robbery committed by his father is only where neither he nor his father took an oath.¹⁷  Whence could it be proved that [the same holds good] where he though not his father, took an oath or his father but not he took an oath or even where both he and his father took oaths? From the significant words, That which he took by robbery or the thing which he hath gotten by oppression¹⁸  whereas in this case he¹⁹  has neither taken violently away nor deceived anybody.'²⁰  — Said R. Nahman: There is no contradiction, as in one case the father admitted his guilt [before he died],²¹  whereas in the other he²²  never admitted it. But if no admission was made, why should the heirs have to pay even the principal? If, however, you argue that this will indeed be so [that they will not have to pay it].²³  since the whole discussion revolves here²³  around the Fifth, does it not show that the principal will have to be paid? It was moreover taught explicitly: 'I would still say that the case where an heir has to pay the principal for a robbery committed by his father was only where both he and his father took oaths or where his father though not he, or he though not his father took an oath, but whence could it be proved that [the same holds good] where neither he nor his father took an oath? From the significant words: The misappropriated article and the deceitfully gotten article, the lost article and the deposit²⁴  as [Yesh Talmud=] this is certainly a definite teaching.'²⁵  And when R. Huna was sitting and repeating this teaching, his son Rabbah²⁶  said to him: Did the Master mean to say Yesh Talmud [i.e. there is a definite teaching on this subject] or did the Master mean to say Yishtallemu [i.e., it stands to reason that the heirs should have to pay]? He replied to him: I said Yesh Talmud [i.e. there is a definite teaching on the subject] as I maintain that this could be amplified from the [added] Scriptural expressions.²⁷  — It must therefore be said that what was meant by the statement 'he made no admission' was that the father made no admission though the son did. But why should the son not become liable to pay even a Fifth for his own oath?²⁸  — It may, however, be said that the misappropriated article was no longer extant in this case.²⁹  But if the misappropriated article was no longer extant, why should he pay even the principal?³⁰  — No; it might have application where real possessions were left.³¹  (But were even real possessions to be left, of what avail would it be since the liability is but an oral liability, and, as known,³²  a liability by mere word of mouth can be enforced neither on heirs nor on purchasers?³³  — It may however be said

1. Except at the sender's risk. If the figure was of people of great renown it would suffice; (Tosaf. a.l.)
2. In the case of power of attorney that the payer be released from further responsibility.
3. Who settled in the Land of Israel, for which cf. Ber. 24b.
4. Who lived in Mehoza in Babylon. cf. Git. 14a.
5. Who travelled extensively, cf. infra 116a.
6. And thus released my father from further responsibility.
7. On account of old age.
8. For the contract of agency as any other executory contract would by the death of the principal become null and void, just as he then instantly becomes deprived of the ownership of all his possessions.
9. In accordance with Kid. 26a, and supra p 49.
10. As in that case your receipt will suffice, you being the legal owner of the sum claimed.
11. Who was engaged in commerce in a large way; v. Ber. 44b.
12. [Modern Khuzistan, S.W. Persia; Obermeyer. p. 204 ff.]
13. Cf. B.B. 77b and 150b, where 'b. Aha' is in the text as is also in MS.M. and who is mentioned together with R. Papa in Naz. 51b and Men. 34a.
14. [S. of Naresh, the home of R. Papa.]
15. As it differs from the Principal only regarding the ruling stated in the Mishnah.
16. Before having paid the Fifth.
17. Falsely.
18. Lev. V, 23.
19. I.e., the heir.
20. This ruling contradicts the conclusion arrived at above that the Fifth is a civil liability and that heirs would have to pay it! V. Supra on Lev. V, 23.
21. In which case he has already become liable for the Fifth and the heirs would have to pay it.
22. I.e., neither the father nor the son, but cf. the discussion that follows.
23. In the latter case.
24. Cf. Lev. V, 23.
25. Sifra on Lev. V, 23.
26. Who did not catch the correct pronunciation of the last phrase in the original and was therefore doubtful as to whether it constituted two words or one word.
27. From the objects of payment enumerated in detail in Lev. V, 23. But if no admission whatever was made why should even the principal be paid?
28. When he took it falsely.
29. And as according to the Mishnaic ruling infra 111b the son could in such a case not be made responsible for the misappropriated article, by committing perjury he rendered himself subject to Lev. V, 4, but not to the Fifth etc. ibid. 24-25.
30. Since the Mishnaic ruling, infra loc. cit. is to apply.
31. In which case the heirs are liable, v. loc. cit.
32. V. B.B. 42a, 157a and 175a.
33. As a liability which is not supported by a legally valid document or judicial decision is only personal with the debtor.