Babylonian Talmud: Tractate Baba Kamma

Folio 106a

whereas [if this was done] in the case of a deposit he would thereby become disqualified from giving evidence.¹  But did Ilfa not say that an oath transfers possession,²  which appears to prove that it is only the oath which would transfer responsibility, whereas mere denial would not transfer responsibility?³  But here also we are dealing with a case where the deposited article was at that time situated on the meadow.⁴  Or if you wish I may say that what was meant to be conveyed by the statement that an oath transfers possession was as in the case of R. Huna, for R. Huna said that Rab stated: [Where one said to another,] 'You have a maneh⁵  of mine' and the other retorted, 'I have nothing of yours'⁶  and confirmed it by an oath⁷  and then witnesses came forward [and proved the defendant to have perjured himself] he would be exempt⁸  as it is stated: And the owner thereof shall accept it and he shall not make restitution,⁹  implying that wherever the plaintiff accepted an oath, the defendant could no more be made liable to pay money.

To return to a previous theme: 'R. Huna said that Rab stated [that where one said to another]. "You have a maneh of mine" and the other rejoined. "I have nothing of yours" and confirmed it by an oath and subsequently witnesses came forward [and proved the defendant to have perjured himself] he would be exempt as it is stated: And the owner thereof shall accept it and he shall not make restitution, implying that wherever the plaintiff accepted an oath, the defendant could no more be made liable to pay money.' Raba thereupon said: We should naturally suppose that the statement of Rab is meant to apply to the case of a loan where the money was given to be spent,¹⁰  but not to a deposit which always remains in the possession of the owner.¹¹  But [I affirm] by God that Rab made his statement even with reference to a deposit, as it was regarding a deposit that the text [of the verse quoted]¹²  was written. R. Nahman was sitting and repeating this teaching.¹³  when R. Aha b. Manyumi pointed out to R. Nahman a contradiction [from the following: If a man says to another] 'Where is my deposit?' and the other replies. 'It is lost,' and the depositor then says. 'Will you take an oath,' and the bailee replies. 'Amen!'¹⁴  then if witnesses testify against him that he himself had consumed it, he has to pay only the Principal,¹⁵  whereas if he admits [this] on his own accord, he has to pay the Principal together with a Fifth and bring a trespass offering?¹⁶  — R. Nahman said to him: We are dealing here with a case where the oath was taken outside the Court of Law.¹⁷  He rejoined:¹⁸  If so read the concluding clause: [But if on being asked] 'Where is my deposit?', the bailee replied: 'It was stolen!', [and when the depositor retorted] 'Will you take an oath?', the bailee said, 'Amen!' if witnesses testify against him that he himself had stolen it, he has to repay double, whereas if he admits this on his own accord, he has to pay the Principal together with a Fifth and a trespass offering. Now, if you assume that the oath was taken outside the Court of Law, how could there be liability for double payment?¹⁹  — He replied: I might indeed answer you that [though in the case of] the commencing clause [the oath was taken] outside the Court of Law, [in that of] the concluding clause [it was taken] in the Court of Law. But as I am not going to give you a forced answer I will therefore say that though in the one case as well as in the other the oath was taken in the Court of Law,²⁰  there is still no difficulty, as in the first case we suppose that the claimant anticipated the Court²¹  [in administering the oath] and in the other case²²  he did not do so.²³  But Rami b. Hama said to R. Nahman: Since you do not personally accept this view of Rab, why are you pledging yourself to defend this statement of Rab? — He replied: I did it [merely] to interpret the view of Rab, presuming that Rab might have thus explained this Mishnaic text. But did not Rab quote a verse²⁴  to support his view?²⁵  — It might be said that the verse intends only to indicate that those who have to be adjured by [the law of] the Torah are only they who by taking the oath release themselves from payment,²⁶  [as it is stated: 'And the owner thereof shall accept it and he shall not make restitution,'²⁴  [implying that it is] the one who [otherwise] would be under obligation to make it good that has to take the oath.

R. Hamnuna raised an objection [from the following]: 'Where an oath was imposed upon a defendant five times [regarding the same defence], whether in the presence of the Court of Law or not in the presence of the Court of Law, and he denied the claim [on every occasion], he would have to be liable²⁷  for each occasion. And R. Simeon said: The reason is that [on each occasion] it was open to him to retract and admit the claim.'²⁸  Now in this case you can hardly say that the action of the Court was anticipated, for it is stated: 'Where an oath was imposed upon a defendant' [which naturally would mean, by the sanction of the Court]; you can similarly not say that it was done outside the Court of Law, for it is stated 'in the presence of the Court of Law.'²⁹  As he³⁰  raised this difficulty so he also solved it, by pointing out that the text should be interpreted disjunctively: 'Where an oath was imposed upon him [by the Court, but taken] outside the Court of law,³¹  or where it was administered in the presence of the Court of Law' but in anticipation of its action.³¹  Raba raised an objection [from the following:] If a bailee³²  advanced a plea of theft regarding a deposit and confirmed it by an oath but subsequently admitted [his perjury], and witnesses came forward [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; but if he confessed after the appearance of the witnesses he has to repay double and bring a trespass offering.³³  Now, here it could not be said that it was outside the Court of Law, or that it was done in anticipation [of the action of the Court], since the liability of double payment³⁴  is mentioned here!³⁵  — Raba therefore said: To all cases of confession,³⁶  no matter whether he pleaded in defence loss or theft, Rab did not mean his statement to apply, for it is definitely written: Then they shall confess,³⁷  implying [that in all cases] the perjurer would have to pay the Principal and the Fifth, [and so also in the case] where he pleaded theft³⁸  and witnesses came forward [and proved otherwise], Rab similarly did not mean his statement to apply, for [it is in this case that] the liability for double payment [is laid down in Scripture];³⁹  the statement made by Rab applies only to the case where, e.g., he pleaded in defence loss⁴⁰  and after confirming it by an oath he did not admit his perjury but witnesses appeared [and proved it].⁴¹  R. Gamda went and repeated this explanation⁴²  in the presence of R. Ashi who said to him: Seeing that R. Hamnuna was a disciple of Rab⁴³  and surely knew very well that Rab meant his statement to apply also to the case of confession,⁴⁴  since otherwise he would not have raised an objection from a case of confession, how then can you say that Rab did not mean his statement to apply to a case of confession?⁴⁴  — Said R. Aha the Elder to R. Ashi: R. Hamnuna's difficulty may have been this:

1. V. p. 614, n. 7.
2. As a deposit (falsely) denied by a bailee committing perjury will no less than in the case of conversion no longer remain in the possession of the depositor but is transferred to the responsibility of the bailee who has become subject to the law of robbery.
3. And not render the bailee a robber, contrary to the view expressed by R. Shesheth.
4. V. p. 615, n. 16.
5. V. Glos.
6. In which case there is strictly speaking neither a biblical nor a Mishnaic oath, but the 'Heseth' oath which is of later Rabbinic origin, for which v. Shebu. 40b.
7. Even though in the days of Rab an oath in such circumstances was by no means obligatory; v. also Tur. H.M. 87-8.
8. From having to pay the maneh, for the oath he took with the consent of the plaintiff had the effect of preventing any possible revival of the claim; the meaning that an oath transfers possession would therefore be that it conclusively bars any further action in the matter.
9. Ex. XXII. 10.
10. And no special act to transfer ownership and possession is necessary.
11. Even while in the hands of the bailee, in which case an act of conveyance is necessary, which could hardly he done by an oath.
12. Ex. XXII, 10.
13. Which R. Huna stated in the name of Rab.
14. 'So be it.' Which in these circumstances amounts to an oath to all intents and purposes; v. Shebu. 29b.
15. But not double payment as his defence was not theft, and no Fifth as he 'did not confess perjury.
16. In accordance with Lev. V, 22-25. Sheb. 49a. Supra 63b and infra 108b. Now, the commencing clause is in glaring contradiction to the view of Rab. The case of confession, however, dealt with in the concluding clause would present no difficulty as Rab's ruling could never apply in that case, as it would have been against Lev. V, 22-23 interpreted on the analogy to Num. V, 7; so Rashi but v. also Tosaf. a.l.
17. Being thus a mere private matter it could not bar the judicial reopening of the case, whereas the ruling of Rab applies to an oath taken at the sitting of the Court of Law.
18. I.e., R. Aha to R. Nahman.
19. Which could be imposed upon the bailee only if his defence of theft was confirmed by him by an oath administered to him by the Court of Law.
20. I.e., in one and the same place.
21. Lit., 'jumped in'.
22. The latter clause as well as Rab's statement.
23. There would therefore still be a difference between the oath in the commencing clause and the oath in the concluding clause, but only in the manner of adjuration and not in the place where it was administered.
24. Ex. XXII, 10.
25. How then could anyone depart from it?
26. I.e., the defendants; v. Shebu. 45a.
27. In accordance with Lev. V, 21-24.
28. Shebu. 36b.
29. This Mishnaic text, from which it could be gathered that, though an oath has already been imposed and taken, the case could still be reopened, will thus be in contradiction to the view of Rab!
30. I.e., R. Hamnuna.
31. [In which case it still remains a private matter and does not bar the judicial re-opening of the case.]
32. Lit., 'the owner of a house'; v. Ex. XXII, 7.
33. Shebu. 37b; supra 65a.
34. V. p. 618, n. 1.
35. Is this not in contradiction to the view of Rab?
36. Of perjury regarding a claim of pecuniary value.
37. Num. V, 7.
38. Confirming it by a false oath.
39. Ex. XXII, 6-8 as interpreted supra p. 368.
40. In which case the bailee could never become liable for double payment.
41. It was in such a case that Rab laid down the ruling that once the oath had been administered the claim could no more be put forward again.
42. Of Raba.
43. Cf. Sanh. 17b; v. also supra 74a, n. 10.
44. Of perjury.

I could quite understand that if you were to say that if witnesses appeared after he took the oath [thus proving him to be a perjurer] he would have to pay, as it would be on account of this that we should make him liable to bring sacrificial atonement¹  for the oath on the last occasion, since it was always open to him to retract and admit the claim. But if you maintain that should witnesses appear after he took the oath he would be exempt, is it possible that whereas if witnesses were to have come and testified against him he would have been exempt,²  we should rise and declare him liable to sacrificial atonement¹  for an oath on the mere ground that he could have been able to retract and confess [his perjury]? For the time being at any rate he has not made such a confession!

R. Hiyya b. Abba said that R. Johanan stated: 'He who [falsely] advances a plea of theft with reference to a deposit in his possession may have to repay double;³  so also if he slaughtered or sold it, he may have to repay fourfold or fivefold.⁴  For since a thief repays double⁵  and a bailee pleading the defence of theft has to repay double, just as a thief who has to repay double, is liable to repay fourfold or fivefold in the case of slaughter or sale, so also a bailee who, when pleading the defence of theft regarding a deposit has similarly to repay double, should likewise have to repay fourfold or fivefold in the case of slaughter or sale.'⁶  But how can you argue from a thief who has to repay double even in the absence of perjury to a bailee pleading the defence of theft where no double payment has to be made unless where a false oath was taken? — It might, however, be said that a thief and a bailee alleging theft are made analagous [in Scripture],⁷  and no refutation could be made against an analogy [in Scripture].⁸  This may be granted if we accept the view⁹  that one verse deals with a thief and the other with a bailee [falsely] advancing the plea of theft, but if we adopt the view that both [the verses] 'If the thief be found … 'and 'If the thief be not found' deal with a bailee falsely advancing a plea of theft, what could be said?¹⁰  — It may still be argued [that they were made analagous by means of the definite article¹¹  as instead of] 'thief' [it was written] 'the thief'. R. Hiyya b. Abba pointed out to R. Johanan an objection [from the following]: [If a depositor says.] 'Where is my ox?' [and the bailee pleads:] 'It was stolen,' [and upon the plaintiff's saying,] 'I want you to take an oath,' the defendant says 'Amen,'¹²  and then witnesses testify against him that he consumed it, he would have to repay double.¹³  Now, in this case, where it was impossible [for him] to consume meat even of the size of an olive¹⁴  unless the animal was first slaughtered [effectively].¹⁵  It was stated that he would repay double [thus implying that it is] only double payment which will be made but not fourfold and fivefold pay ments!¹⁶  We might have been dealing here with a case where it was consumed nebelah.¹⁷  Why did he¹⁸  not answer that it was consumed terefah?¹⁹  — [He adopted] the View of R. Meir who stated²⁰  that a slaughter which does not [render the animal ritually] fit for consumption is still designated [in law] slaughter.²¹  But again, why not answer that the ox was an animal taken alive out of a slaughtered mother's womb [and as such it may be eaten²²  without any ritual slaughter]?²³  — [But on this point too he¹⁸  followed] the view of R. Meir who said that an animal taken alive out of a slaughtered mother's womb is subject to the law of slaughter.²²  But still, why not answer that the ruling applied where, e.g., the bailee had already appeared in the Court, and was told²⁴  to 'go forth and pay the plaintiff'? For Raba stated:²⁵  [Where a thief was ordered to] go and pay the owner [and after that] he slaughtered or sold the animal, he would be exempt,²⁶  the reason being that since the judges had already adjudicated on the matter, when he sold or slaughtered the animal he became [in the eye of the law] a robber, and a robber has not to make fourfold and fivefold payments;²⁷  [but where they merely said to him] 'You are liable to pay him' and after that, he slaughtered or sold the animal he would be liable [to repay fourfold or fivefold], the reason being that since they have not delivered the final sentence upon the matter, he is still a thief!²⁸  — To this I might say: Granting all this,²⁹  why not answer that the bailee was a partner in the theft and slaughtered the ox without the knowledge of his fellow partner [in which case he could not be made liable for fourfold or fivefold payment]?³⁰  It must therefore be that one out of two or three [possible] answers has been adopted.

R. Hiyya b. Abba said that R. Johanan stated: He who advanced in his own defence a plea of theft regarding a lost article³¹  [which had been found by him] would have to repay double, the reason being that it is written: For any manner of lost thing whereof one saith.³²  R. Abba b. Memel pointed out to R. Hiyya b. Abba an objection [from the following:] If a man shall deliver³³  implies that the delivery by a minor³⁴  is of no effect [in law].³⁵  So far I only know this to be the case where he was a minor at the time of the delivery and was still a minor at the time of the demand, but whence could it be proved that this is so also in the case where at the time of the delivery he had been a minor though at the time of the demand he had already come of age? Because it says further: The cause of both parties shall come before the judges.³⁶  [thus showing that the law of bailment does not apply] unless the delivery and the demand were made under the same circumstances.³⁷  Now, if your view is sound,³⁸  why should this case [with the minor] not be like that of the lost article?³⁹  — He replied:⁴⁰  We are dealing here with a case where the deposit was consumed by the bailee while the depositor was still a minor.⁴¹  But what would be the law where he consumed it after the depositor had already come of age? Would he have to pay?⁴²  If so, why state 'unless the delivery and the demand were made under the same circumstances,' and not 'unless the consumption⁴³  and the demand took place under the same circumstances'? — He said to him:⁴⁴  You should indeed read 'unless the consumption⁴⁵  and the demand took place under the same circumstances'. R. Ashi moreover said: The two cases⁴⁶  could not be compared, as the lost article came into the hands of the finder from the possession of a person of responsibility,⁴⁷  whereas [in the case of a minor] the deposit did not come to the bialee from the possession of a person of responsibility.

R. Hiyya b. Abba further said that R. Johanan stated: He⁴⁸  who puts forward a defence of theft in the case of a deposit could not be made liable⁴⁹  unless he denies a part and admits a part [of the claim], the reason being that Scripture states: This is it⁵⁰  [implying 'this' only].⁵⁰  This view is contrary to that of R. Hiyya b. Joseph. for R. Hiyya b. Joseph said:

1. In accordance with Lev. V, 21-26.
2. V. p. 616, n. 8.
3. If he confirmed the plea by an oath.
4. Cf. Ex. XXI, 37.
5. Ibid. XXII, 6.
6. V. supra 62b, 63b.
7. Lit. 'It is an analogy, hekkesh. In Ex. XXII, 6-8 as interpreted supra pp. 368 ff.
8. This being an axiomatic hermeneutic rule; v. supra 63b and Men. 82b.
9. For notes, v. supra 63b.
10. I.e., where then were the two made analogous in Scripture?
11. Which has the effect of denoting the thing par excellence as in Pes. 58b; v. also Kid. 15a.
12. V. p. 617. n. 5.
13. Infra 108b, v. also Shebu. 49a.
14. Which is the minimum quantity constituting the act of eating; cf. 'Er. 4b.
15. In accordance with the law referred to in Deut. XII, 21 and laid down in detail in Hul. III.
16. Does this not contradict the view expressed by R. Johanan that even fourfold or fivefold payment would have to be made?
17. I.e. where the animal was not slaughtered in accordance with the ritual, v. Glos., in which case the law of fourfold and fivefold payments does not apply, as laid down supra p. 445,
18. I.e., R. Johanan.
19. I.e., where an organic disease was discovered in the animal, v. Glos.; according to the view of R. Simeon stated supra p. 403 the law of fourfold and fivefold payments does similarly not apply.
20. Hul. VI, 2.
21. So that the law of fourfold and fivefold payments will apply which is also the anonymous view stated supra p. 403.
22. V. Hul. IV, 5.
23. On account of the ritual slaughter carried out effectively on the mother.
24. Before he slaughtered the animal, in which case he would not have to make fourfold and fivefold payments for a subsequent slaughter.
25. Supra 68b.
26. From fourfold and fivefold payments.
27. In fact no pecuniary fine at all; cf. supra p. 452.
28. Who is subject to the law of Ex. XXI, 37. Why then not give this answer?
29. That there was also some other answer to be given.
30. V. supra 78b.
31. Supra 57a and 63a.
32. V. Ex. XXII, 8.
33. Ex. XXII, 6.
34. Since he has not yet attained manhood; cf. Sanh. 69a.
35. Regarding the possible liability upon the bailee for double payment.
36. V. Ex. XXII, 8.
37. Cf. J. Shebu. VI, 5.
38. That there would be double payment in the case of perjury committed regarding a lost article.
39. Where there would be liability in the absence of any depositor at all.
40. I.e., R. Hiyya to R. Abba.
41. In which case the bailee had regarding that deposit never had any responsibility to a person of age.
42. Double payment for perjury.
43. Though not the delivery.
44. V. p. 623. n. 11.
45. V. p. 623, n. 14.
46. I.e. a lost article and a deposit of a minor.
47. Lit., 'understanding', i.e. the person who lost it.
48. I.e., an unpaid bailee.
49. To take the oath of the bailees and in case of perjury to have consequently to restore double payment.
50. And no more, which thus constitutes an admittance of a certain part and the denial of the balance.