Babylonian Talmud: Tractate Baba Kamma

Folio 78a

But in connection with sacrifices it is also written 'a bullock or a sheep', in which case it is impossible for you to exclude a hybrid born from these two, why then should we not employ the term 'or' to include [a hybrid of a different kind]? — Since the term 'or' in the later phrase¹  is to 'be employed to exclude, the term 'or' in the earlier phrase²  should similarly be employed to exclude. But why not say on the contrary that, as the term 'or' in the earlier phrase has to be employed to amplify, so also should the term 'or' in the later phrase? — Would this be logical? I grant you that if you say that the term 'or' meant to exclude, then it would be necessary to have two [terms 'or'] to exclude, for even when a hybrid has been excluded, it would still be necessary to exclude an animal looking like a hybrid. But if you say it is meant to amplify, why two amplifications [in the two terms 'or']? For once a hybrid is included, what question could there be of an animal looking like a hybrid. To what halachah then would the statement made by Raba refer, that this is a locus classicus for the rule that wherever it says 'sheep'. the purpose is to exclude a hybrid? If to sacrifices, is it not explicitly said: 'A bullock or a sheep which excepts a hybrid'? If to the tithes [of animals], is not the term 'under'³  compared to 'under' used in connection with sacrifices [making it subject to the same law]? If to a firstling, is the verb expressing 'passing'⁴  not compared to 'passing'³  used in connection with tithe? Or again we may say, since where the animal only looks like a hybrid you say that it is not [subject to the law of firstling], since it is written: 'But the firstling of an ox'⁵  [which implies that the rule holds good] only where the parents were of the species of 'ox' and the firstling was of the species of 'ox', what question can there be regarding a hybrid itself? — The statement made by Raba must therefore have referred to the firstling of an ass,⁶  as we have learnt:⁷  It can not be redeemed either by a calf or by a wild animal or by a slaughtered sheep or by a trefa sheep or by a hybrid or by a koy.⁸  But if we accept the view of R. Eleazar, who allows redemption with a hybrid sheep, as we have learnt: R. Eleazar allows the redemption to be made with a hybrid, for it is a sheep,⁷  to what halachah [can we refer the statement of Raba]? — R. Eleazar might reply that the statement made by Raba is to teach [the prohibition of] an unclean animal⁹  born from a clean animal¹⁰  which became pregnant from an unclean animal [being forbidden as food].¹¹  this opinion not being in accordance with R. Joshua. for R. Joshua derived¹²  this prohibition from the verse 'the sheep of sheep and the sheep of goats'.¹³  which implies that unless the father was a 'sheep' and the mother a 'sheep' [the offspring is forbidden for food]. But could a clean animal become pregnant from an unclean animal? — Yes, since it is known to us

1. Dealing with 'sheep' and 'goat'.
2. Where 'bullock' and 'sheep' are mentioned.
3. Lev. XXVII, 32.
4. Ex. XIII, 12.
5. E.V. 'a cow'. Num. XVIII. 17.
6. Which has to be redeemed by a sheep (Ex. XIII. 13). so that a hybrid would therefore not be eligible.
7. Bek. 1, 5.
8. I.e., a kind of an antelope about which there was a doubt whether it belongs to the species of cattle or to that of beasts of the forest. [V. Lewysohn. Zoologie, p. 115 ff. who identifies it with the [G], 'goat-stag' mentioned by Plinius.]
9. E.g.. a swine; v. Lev. XI, 7.
10. Such as a sheep.
11. Such as where a cow became pregnant from a horse and gave birth to a foal or where a sheep became pregnant from a swine and gave birth to a swine.
12. Cf. Bek. 7a.
13. Deut. XIV, 4.

that it could become pregnant from an animal with uncloven hoofs, [which though born from parents belonging to the species of ox, is considered unclean] in accordance with the view of R. Simeon.¹

Raba asked: [If one vowed.] 'I take upon myself to sacrifice a burnt — offering.'²  and he set aside an ox and somebody came and stole it, should the thief be entitled to free himself³  by paying for a sheep, if we follow the Rabbis, or even for a burnt-offering of a bird, if we follow R. Eleazar b. Azariah, as we have learnt:⁴  [If one vowed.] 'I take it upon myself to bring a burnt-offering.' he may bring a sheep;⁵  R. Eleazar b. Azariah says that he may even bring a turtle — dove or a young pigeon?⁶  What should be the legal position? Shall we say that since he undertook to bring something called a burnt-offering [the thief may be entitled to restore the minimum burnt-offering], or perhaps the donor might be entitled to say to him: 'I am anxious to do my duty in the best manner possible'? After he put the question, on second thoughts he decided that the thief might free himself by paying a sheep, according to the view of the Rabbis, or even a burnt-offering of a bird, according to the view of R. Eleazar b. Azariah. R. Aha the son of R. Ika taught this as a definite ruling, [as follows]: Raba said: [If one vowed.] 'I take it upon myself to sacrifice a burnt-offering.' and he set aside an ox and somebody came and stole it, the thief may free himself by paying for a sheep, if we follow the Rabbis, or even for a burnt-offering of a bird, if we follow R. Eleazar b. Azariah.

MISHNAH. IF HE SOLD [THE STOLEN SHEEP OR OX] WITH THE EXCEPTION OF ONE HUNDREDTH PART OF IT,⁷  OR IF HE HAD SOME PARTNERSHIP IN IT⁸  [BEFORE HE STOLE IT] OR IF HE SLAUGHTERED IT AND IT BECAME NEBELAH⁹  UNDER HIS HAND, OR IF HE STABBED IT OR TORE LOOSE [THE WIND PIPE AND GULLET BEFORE CUTTING],¹⁰  HE WOULD HAVE TO MAKE DOUBLE PAYMENT¹¹  BUT WOULD NOT HAVE TO MAKE FOUR-FOLD AND FIVE-FOLD PAYMENTS.

GEMARA. What is meant by 'with the exception of one hundredth part of it'? — Rab said: With the exception of any part that would be rendered permissible [for food] together with the bulk of the animal through the process of slaughter.¹²  Levi, however, said: With the exception even of its wool. It was indeed so taught in a Baraitha: 'With the exception of its wool.'

An objection was raised [from the following]: 'If he sold it with the exception of its fore-paw, or with the exception of its foot, or with the exception of its horn, or with the exception of its wool, he would not have to make four-fold and five-fold payments. Rabbi, however, says: [If he reserved for himself] anything the absence of which would prevent a [ritual] slaughter, he would not have to pay four-fold and five-fold payments, but [if he reserves] anything which is not indispensable for the purposes of [ritual] slaughter¹³  he would have to make four-fold or five-fold payment. But R. Simeon b. Eleazar says: If he reserved its horn he would not have to make four-fold or five-fold payment; but if he reserved its wool he would have to make four-fold or five-fold payment'. This presents no difficulty to Levi, as he would concur with the first Tanna, but with whom does Rab concur?¹⁴  — It may he said that Rab concurs with the following Tanna, as taught: R. Simeon b. Eleazar said:¹⁵  'If he sold it with the exception of its fore-paw or with the exception of its foot he would not have to make four-fold or five-fold payment. But if with the exception of its horn or with the exception of its wool he would have to make four-fold and five-fold payments'. What is the point at issue between all these Tannaim? — The first Tanna held that [to fulfil the words] 'and he slaughter it'¹⁶  we require the whole of it, as also [to fulfil the words] 'and he sell it' we require the whole of it.¹⁷  Rabbi, however, held that 'and he slaughter it' refers only to those parts the absence of which would render the slaughter ineffective, excluding thus anything which has no bearing upon the slaughter, while 'and he sell it' is of course analogous to 'and he slaughter it'. R. Simeon b. Eleazar, on the other hand, maintained that the horn not being a part which is usually cut off could be reckoned as a reservation, so that¹⁸  he would not have to make four-fold and five-fold payments, whereas the wool of the animal being a part which is usually shorn off could not be reckoned as an reservation, and he would thus have to make four-fold or five-fold payment. But the other Tanna of the School of R. Simeon b. Eleazar maintained that its fore-paws or feet which require slaughter [to render them permissible] form a reservation, and he would not have to pay four-fold and five-fold payments, whereas its horns or its wool, as they do not require slaughter [to render them permissible] would not constitute a reservation. But does R. Simeon b. Eleazar not contradict himself? — Two Tannaim report differently the view of R. Simeon b. Eleazar.

Our Rabbis taught: He who steals a crippled, or a lame, or a blind [sheep or ox], and so also he who steals an animal belonging to partners [and slaughters it or sells it] is liable [for four-fold and five-fold payments]. But if partners committed a theft they would be exempt.¹⁹  But was it not taught: 'If partners committed a theft, they would be liable'?²⁰  — Said R. Nahman: This offers no difficulty, as the former statement deals with a partner stealing from [the animals belonging to him and] his fellow — partner, whereas the latter states the law where a partner stole from outsiders.²¹  Raba objected to [this explanation of] R. Nahman [from the following]: 'Lest you might think that if a partner steals from [the animals belonging to himself and to] his fellow — partner, or if partners commit the theft, they should be liable, it is definitely stated, 'And slaughter it',²²  showing that we require the whole of it, which is absent here' — [Does this not prove that partners stealing from outsiders are similarly exempt?] — R. Nahman therefore said: The contradiction [referred to above] offers no difficulty, as the statement [of liability] referred to a partner slaughtering²³  with the authorisation of his fellow — partner,²⁴  whereas the other ruling referred to a partner slaughtering without the authorization of his fellow-partner.²⁵

R. Jeremiah inquired: If the thief sold a stolen animal with the exception of the first thirty days,²⁶  or with the exception of its work²⁷  or with the exception of its embryo, what would be the law?²⁸  If we accept the view that an embryo is [an integral part like] the thigh of its mother,²⁹  there could be no question that this would be a sure reservation. The question would arise only if we accept the view that an embryo is not like the thigh of its mother. What indeed should be the law? Shall we say that since it is joined to it, it should count as a reservation, or perhaps since it is destined to be separated from it, it should not be considered a reservation? Some state the question thus: [Shall we say that] since it is not like the thigh of its mother, it should not count as a reservation, or perhaps since at that time it requires [the union with] its mother to become permissible for food through the process of slaughter³⁰  it should be equal to a reservation made in the actual body of the mother? — Let this stand undecided.

R. papa inquired: If the thief after stealing mutilated it and then sold it, what would be the law?³¹  Shall we say that [since] all that he stole he did not sell [he should be exempt], or perhaps [since] in what he sold he reserved nothing [for himself he should be liable]? — Let this [also] stand undecided.

Our Rabbis taught: If he stole [a sheep or an ox] and gave it to another person who slaughtered it, or if he stole it and gave it to another person who sold it,

1. Cf. Bek. 6b.
2. In which case he would be responsible for the loss of the sacrifice which he set aside, having to replace it with another sacrifice, and the thief would therefore according to R. Simeon be liable to the donor.
3. So far as the owner is concerned.
4. Men. 107a.
5. Which could also be brought as a burnt offering; cf. Lev. 1, 10.
6. Cf. ibid. 14.
7. The exemption here is because the sale did not extend to the whole animal.
8. In which case not the whole act of the sale was unlawful.
9. V. Glos.
10. Thus rendering the animal nebelah.
11. For the act of theft.
12. This law would thus not extend to a case where the wool or the horns were excepted from the sale.
13. E.g., the fore-paw.
14. For he could not follow the views of Rabbi according to whom even where the fore-paw (which is rendered permissible through the process if slaughter) was excepted, the thief would still have to make four-fold or five-fold payment.
15. According to the tradition if another School, v. discussion which follows.
16. Ex. XXI, 37.
17. Without any exception whatever.
18. Where he excepted it from the sale.
19. Tosef. B.K. VII, 4.
20. B.M. 8a.
21. Where there is liability.
22. Ex. XXI, 37.
23. An animal stolen by both of them and for which they both have to share the fine for the theft.
24. And since in this case the law of agency applies even for the commission of a sin (v. supra 71a), they would both have to share the fine for the slaughter too.
25. In which case the fellow-partner could certainly not be made liable to pay anything for the slaughter nor again the one who slaughtered the animal, since we could not make him liable for the whole of the slaughter, as though he slaughtered the whole of the animal he was a thief but of half of it.
26. During which period the thief should still retain it.
27. The vendee may slaughter it forthwith, but any work done by it should be credited to the vendor.
28. Regarding the payment of the fine.
29. Cf. Tem. 30b and also supra p. 265.
30. In accordance with Hul. 74a.
31. Regarding the payment of the fine.