Babylonian Talmud: Tractate Baba Kamma

Folio 65a

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.

1. B.M. 10b and 56b.
2. That it was meant to imply only one point.
3. I.e., the verb would have been doubled in the same tense.
4. In the tense of the verb, the infinite followed by the finite.
5. V. supra p. 374.
6. V. p. 374, n. 7.
7. Lit., 'when lying down'.
8. For a similar expression cf. supra p. 268.
9. According to whom four-fold and five-fold payments are reckoned on the basis of the value when the case comes into court.
10. Whereas where there was an increase in price or where the animal became fatter by itself, the ruling of Rab may hold good.
11. V. p. 376, n. 11.
12. The liability thus began at the time when the thief caused the animal to become lean.
13. B.M. 43a.
14. As was its value at the time when he damaged it.
15. As was its value at the time of the theft.
16. And maintain to the contrary that even where the thief broke it or drank it he would still pay only one zuz, which was its value at the time of the theft.
17. In accordance with Lev. V, 24-25. [But not the doubling, since it is a fine which is not payable on self-admission.]
18. V. p. 634, n. 7.
19. V. p. 634, n. 6.
20. Provided, however, that the doubling and the fifth are equal in amount.

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

1. Lev. V, 24.
2. As here, where double payment has to be made.
3. Under any circumstances, even where the doubling of the payment and the fifth are not equal in amount, though the trespass offering will have to be brought.
4. Infra 106a; Shebu. 37b.
5. The fifth is 25% of the general sum which will have to be paid as principal plus a fifth thereof amounting thus to a fourth of the principal.
6. As was the value at the time of the coming into court.
7. E.V.: 'and the fifth part thereof'.
8. I.e., a fifth will be paid for each false swearing.
9. Lev. ib., 24-25.
10. E.V.: 'And … his trespass offering, v. 25.
11. So that the law regarding the trespass offering is not governed by the condition made in verse 24.
12. [Who holds that he neither brings a trespass offering. How will he meet the argument from the particle 'eth'?]
13. Making them subject to the same law.
14. I.e., the trespass offering.
15. I.e., the fifth.
16. While still in his possession.
17. The technical term is Shinnuy.
18. Having, however, to repay the principal together with the double payment for the act of theft.
19. The fine for the slaughter or sale will thus not be imposed upon him.
20. The fine for the slaughter or sale.
21. R. Elai to R. Hanina.
22. When it was merely a lamb or a calf.
23. When it already became a ram, or an ox, if the ownership has not changed.
24. R. Hanina to R. Elai.
25. I.e., the thief against the plaintiff.
26. Cf. Shab. 84b and Keth. 45b.
27. [Though 'growth' confers no title.]
28. Lev. XXII, 27.
29. Gen. XXXI, 38.
30. By R. Hanina from the teaching imposing the fine of four-fold and five-fold payments.
31. Infra p. 544 and Tem. 30b.
32. In accordance with Deut. XXIII, 19.
33. As it was not the same article which was given as hire.
34. [Not identified, but probably in Asia; v. Neubauer, p. 386.]
35. V. p. 380, n. 15.
36. E.V.: 'even', and which is generally taken as an amplification.
37. I.e., to prohibit even the articles into which the hire was transformed.
38. [H], 'both of them' (E.V.: 'both these').
39. I.e., the original articles themselves.