Babylonian Talmud: Tractate Baba Kamma

Folio 108a

and it so happened that witnesses appeared and proved the first oath [to have been perjury]¹  while he himself confessed that the last oath was perjury.²  Now, what is the law? Is it the pecuniary value for which there is liability to make double payment that exempts from the Fifth, so that [as] in this case too there is liability to make double payment [for the deposit, there would be no Fifth for it], or perhaps it is the oath which involves a liability for double payment that exempts from a Fifth, so that since the last oath does not entail liability for double payment³  it should entail the liability for the Fifth? — Said Raba: Come and hear: If a man said to another in the market: 'Where is my ox which you have stolen,' and the other rejoined, 'I did not steal it at all,' whereupon the first said, 'Swear to me, and the defendant replied, 'Amen,' and witnesses then gave evidence against him that he did steal it, he would have to repay double, but if he confessed on his own accord, he would have to pay the Principal and a Fifth and bring a trespass offering.⁴  Now here it is the witnesses⁵  who make him liable for double paymentl, and yet it was only where he confessed of his own accord that he would be subject to the law of a Fifth,⁶  whereas where he made a confession after [the evidence was given by] the witnesses, it would not be so. But if you assume that it is the oath involving liability of double payment that exempts from the Fifth, why then [in this case] even where he made confession after the evidence had already been given by the witnesses should the liability for the Fifth not be involved? Since the oath here was not instrumental in imposing the liability for double payment why should it not involve the liability for the Fifth? This would seem conclusively to prove that a pecuniary value for which there is liability to make double payment exempts from the Fifth, would it not? — This could indeed be proved from it.

Rabina asked: What would be the law as to a Fifth and double payment to be borne by two persons respectively? — What were the circumstances? — E.g., where an ox was handed over to two persons and both pleaded in defence theft, but while one of them confirmed it by an oath and subsequently confessed [it to have been perjury] the other one confirmed it by an oath and witnesses appeared [and proved it perjury]. Now, what is the law? Shall we say that it was only in the case of one man that the Divine Law was particular that he should not pay both the Fifth and double payment,⁷  so that in this case [where two persons are involved]. one should make double payment and the other should pay a Fifth, or shall it perhaps be said that it was regarding one and the same pecuniary value that the Divine Law was particular that there should not be made any payment of both a Fifth and double payment;⁸  and in this case also it was one and the same pecuniary value? — This must stand undecided.

R. Papa asked: What would be the law regarding two Fifths and two double payments in the case of one man? What are the circumstances? E.g., where the bailee first pleaded in his defence loss and after confirming it by an oath confessed [it to have been perjury],⁹  but afterwards came back and pleaded [again a subsequent] loss, confirming it by an oath, and then again confessed [it to have been perjury];⁹  or, e.g., where he pleaded in defence theft confirming it by an oath and witnesses appeared [and proved it to have been perjury],¹⁰  but he afterwards came back and advanced [again] the defence of [a subsequent] theft, confirming it by an oath, and witnesses appeared against him. Now, what would be the law? Shall we say that it was only two different kinds of pecuniary liability¹¹  that the Divine Law forbade to be paid regarding one and the same pecuniary value,⁸  whereas here the liabilities are of one kind¹²  [and should therefore be paid], or perhaps it was two pecuniary liabilities¹³  that the Divine Law forbade to be paid regarding one and the same pecuniary value and here also the pecuniary liabilities are two?¹²  — Come and hear what Raba stated: And shall add the fifth:¹⁴  the Torah has thus attached many fifths to one principal.¹⁵  It could surely be derived from this.

If the owner had claimed [his deposit] from the bailee who, [though] he [denied the claim] on oath [nevertheless] paid it, and [it so happened that] the actual thief was identified,¹⁶  to whom should the double payment go?¹⁷  — Abaye said: To the owner of the deposit, but Raba said: To [the bailee with] whom the deposit was in charge. Abaye said that it should go to the depositor, for since he was troubled¹⁸  to the extent of having to impose an oath, he could not be expected to have transferred the double payment.¹⁹  But Raba said that it would go to [the bailee with] whom the deposit was in charge, for since [after all] he paid him, the double payment was surely transferred to him. They are divided on the implication of a Mishnah, for we learned: Where one person deposited with another an animal or utensils which were subsequently stolen or lost, if the bailee paid, rather than deny on oath, although it has been stated²⁰  that an unpaid bailee can by means of an oath discharge his liability and [it so happened that] the actual thief was found and had thus to make double payment, or, if he had already slaughtered the animal or sold it, fourfold or fivefold payment, to whom should he pay? To him with whom the deposit was in charge. But if the bailee took an oath [to defend himself] rather than pay and [it so happened that] the actual thief was found and has to make double payment, or, where he already slaughtered the animal or sold it, fourfold or fivefold payment, to whom shall he pay? To the owner of the deposit.²¹  Now, Abaye infers his view from the commencing clause, whereas Raba deduces his ruling from the concluding clause. Abaye infers his view from the commencing clause where it was stated: 'If the bailee paid, rather than deny on oath …' this is so only where he was not willing to swear,

1. And thus subject to Ex. XXII, 8.
2. Rendering himself thus liable under Lev. V, 21-25.
3. Since he did not confirm a defence of theft.
4. The Mishnah of Shebu. 49a, where, however, the adjuration is missing, but v. also Jer. ibid. 3.
5. And not at all the oath.
6. I.e., Lev. V, 24.
7. V. p. 628, n. 5.
8. V. p. 628, n. 5.
9. V. p. 628, n. 7.
10. V. p. 628, n. 6.
11. Such as double payment and a Fifth.
12. I.e., either two Fifths or two amounts of double payment.
13. No difference whether of one kind or of two different kinds.
14. Lev. V, 24.
15. Supra 65b, v. also Sifra on Lev. V, 24, and Malbim, a.l.
16. And has to pay double.
17. Either to the bailee in accordance with B.M. 33b, to be quoted presently, or to the depositor.
18. By the bailee.
19. To the bailee; v. B.M. 34a and also 35a.
20. Ibid VII, 8.
21. V. B.M. 33b.

but where he did take an oath, even though he subsequently paid, the thief would surely have to pay the owner of the deposit; but Raba deduces his ruling from the concluding clause where it was stated: 'But if the bailee took an oath [to defend himself] rather than pay …', this is so only where he was not willing to pay, but where he did pay even though he first denied the claim on oath, the thief would of course have to pay him with whom the deposit was in charge. Does not the implication of the concluding clause contradict the view of Abaye? — Abaye would say to you: What it means to say is this: 'If the bailee swore rather than pay before having taken the oath, though he did so after he took the oath, to whom will the thief pay? To the owner of the deposit.' But does not the implication of the commencing clause contradict the view of Raba? — Raba could say to you that the meaning is this: 'If the bailee paid, as he was not willing to take his stand upon his oath and consequently paid, to whom should the thief pay? To him with whom the deposit was in charge.

Suppose the owner had claimed [his deposit] from the bailee, and the latter denied upon oath, and the actual thief was then identified and the bailee demanded payment from him and he confessed the theft, but when the owner [of the deposit] demanded payment from him he denied it and witnesses were brought, did the thief become exempt¹  through his confession to the bailee,²  or did the thief not become exempt¹  through his confession to the bailee?³  — Said Raba: If the oath [taken by the bailee] was true, the thief would become exempt through his confession to the bailee,⁴  but if he perjured himself in the oath⁵  the thief would not become exempt through his confession to the bailee.⁶  But Raba asked: What would be the law where the bailee was prepared to swear falsely but [it so happened that for some reason or other] he was not allowed to do so?⁷  — This must remain undecided. But while R. Kahana was stating the text thus, R. Tabyomi was reading it as follows: 'Rab asked: What would be the law where the bailee has sworn falsely [to defend himself]?'⁸  — This must stand undecided.

Suppose the owner claimed [his deposit] from the bailee who thereupon paid him, and the thief was then identified and when the owner demanded payment from him he confessed, whereas when the bailee demanded payment from him he denied it, and witnesses appeared [against him], should the thief become exempt⁹  through his confession to the owner or not? Shall we maintain that the bailee is entitled to say to the owner: 'Since you have received the value [of your deposit] your interest has completely lapsed¹⁰  in this matter', or can the owner say to him: 'Just as you did us a favour,¹¹  we also are willing to do you the same and are therefore hunting after the thief. Let us take back what belonged to us and you receive back what belonged to you'? — This must stand undecided.

It was taught:¹²  Where the deposit was stolen through violence¹³  and the thief was identified, Abaye said that if the bailee was unpaid he has the option of going to law with him,¹⁴  or of [clearing himself by] an oath [so that the owner will himself have to deal with the thief], whereas if it was a paid bailee he would have to go to law with the thief and he cannot take an oath to discharge his liability.¹⁵  But Raba said: Whichever he is¹⁶  he would have to go to law with the thief and not take an oath. May we say that Raba differs from the view of R. Huna b. Abin, for R. Huna b. Abin sent word that where the deposit was stolen by violence and the thief was identified, if the bailee was unpaid he had the option of going to law with him or of [clearing himself by] an oath, whereas if he was a paid bailee he would have to go to law with the thief and could not clear himself by an oath?¹⁷  — Raba could say to you that [in this last ruling] we are dealing with a case where the paid bailee took the oath before [the thief was identified].¹⁸  But did R. Huna not say: 'He had the option of going to law or of clearing himself by an oath'?¹⁹  — What he meant was this: 'The unpaid bailee had the choice of taking his stand on his oath²⁰  or of going to law with him.' Rabbah Zuti asked thus: Where the deposited animal was stolen by violence and the thief restored it to the house of the bailee where it then died through carelessness [on the part of the bailee], what should be the law? Shall we say that since it was stolen by violence, the duty of bailment came to an end,²¹  or perhaps since it was restored to him it once more came into his charge [which thus revived]?²²  — This must stand undecided.

MISHNAH. [IF A MAN SAYS TO ANOTHER] 'WHERE IS MY DEPOSIT?' AND HE²³  REPLIES: 'IT IS LOST' [AND THE DEPOSITOR THEN SAYS]. 'I PUT IT TO YOU ON OATH.' AND THE OTHER REPLIES. 'AMEN', IF WITNESSES TESTIFY AGAINST HIM THAT HE HIMSELF HAD CONSUMED IT, HE HAS TO PAY ONLY THE PRINCIPAL, WHEREAS IF HE CONFESSES ON HIS OWN ACCORD HE HAS TO REPAY THE PRINCIPAL TOGETHER WITH A FIFTH AND BRING A TRESPASS OFFERING.²⁴  [BUT IF THE DEPOSITOR SAYS] 'WHERE IS MY DEPOSIT?' AND THE BAILEE REPLIES: 'IT WAS STOLEN' [AND THE DEPOSITOR THEN SAYS] I PUT IT TO YOU ON OATH, AND THE BAILEE REPLIES, AMEN, IF WITNESSES TESTIFY AGAINST HIM THAT HE HIMSELF HAD STOLEN IT HE HAS TO REPAY DOUBLE,²⁵  WHEREAS IF HE CONFESSES ON HIS OWN ACCORD HE HAS TO REPAY THE PRINCIPAL TOGETHER WITH A FIFTH AND BRING A TRESPASS OFFERING.²⁴  IF A MAN ROBBED HIS FATHER AND, [WHEN CHARGED BY HIM,] DENIED IT ON OATH, AND [THE FATHER AFTERWARDS] DIED,²⁶  HE WOULD HAVE TO REPAY THE PRINCIPAL AND A FIFTH [AND A TRESPASS OFFERING]²⁷  TO HIS [FATHER'S] CHILDREN²⁸  OR TO HIS [FATHER'S] BROTHERS;²⁹  BUT IF HE IS UNWILLING TO DO SO,³⁰  OR HE HAS NOTHING WITH HIM,³¹  HE SHOULD BORROW [THE AMOUNT FROM OTHERS AND PERFORM THE DUTY OF RESTORATION TO ANY OF THE SPECIFIED RELATIVES] AND THE CREDITORS CAN SUBSEQUENTLY COME AND [DEMAND TO] BE PAID³²  [THE PORTION WHICH WOULD BY LAW HAVE BELONGED TO THE ROBBER AS HEIR]. IF A MAN SAID TO HIS SON: 'KONAM BE³³  WHATEVER BENEFIT YOU HAVE OF MINE,'³⁴  AND SUBSEQUENTLY DIED, THE SON WILL INHERIT HIM.³⁵

1. From paying the fine.
2. In accordance with supra p. 427.
3. The problem is whether the bailee had an implied mandate to approach the thief or not, as a confession made not to the plaintiff or his authorised agent but to a third party uninterested in the matter is of no avail to exempt from the fine; cf. however the case of R. Gamaliel and his slave Tabi, supra p. 428.
4. As in this case the trust in the bailee has not been impaired and the implied mandate not cancelled.
5. I.e., he advanced another defence, e.g., accidental death.
6. Who could no longer be trusted and thus had no right to represent the depositor any more.
7. Has the trust in him thereby been impaired or not?
8. Shall it be said that though he had already sworn inaccurately he would sooner or later have been compelled by his conscience to make restoration, as he in fact exerted himself to look for the thief and should therefore still retain the trust reposed in him, especially since the article had really been stolen though he advanced for some reason another plea; R. Tabyomi had thus not read the concluding clause in the definite statement made above by Raba.
9. V. p. 632. n. 1.
10. Lit., 'removed'.
11. By paying us for the deposit and not resisting our claim.
12. Cf. B.M. 93b.
13. By an armed robber; v. supra, 57a.
14. I.e. the thief.
15. For since he was paid, though he is exempt in the case of theft by violence, it is nevertheless his duty to take the trouble to litigate with the thief, since the thief is identified.
16. I.e., unpaid as well as paid.
17. B.M. 93b.
18. In which case the depositor will himself have to deal with the case.
19. Which makes it clear that the oath has not yet been taken.
20. 'Already taken by him.
21. So that the bailee should no more be subject to the law of bailment.
22. To make the law of bailment still applicable.
23. Being an unpaid bailee.
24. In accordance with Lev. V, 21-25.
25. In accordance with Ex. XXII, 8.
26. When the son confessed the theft.
27. The phrase in parenthesis occurs in the Mishnaic text but not in Rashi. [And rightly so, for what have the children etc. to do with the trespass offering.]
28. I.e., to his own brothers, for if he would retain anything for himself he would not obtain atonement, since he did not make full restoration (Rashi). [Tosaf.: to his own children, or to his own brothers in the absence of any children to him, v. B.B. 159a.]
29. I.e., his uncles, in the absence of any other children to his father.
30. I.e., to forfeit his own share in the payment which he has to make.
31. To be in a position to do so.
32. From the amount restored.
33. I.e., Let it be forbidden as sacrifice; v. Ned. I, 2.
34. [J.: 'that you do not benefit out of anything belonging to me.']
35. For through the death of the father his possessions passed out of his ownership and the son is no more benefiting out of anything belonging to him; cf. Ned. V, 3.