Babylonian Talmud: Tractate Baba Kamma

Folio 63a

as each item in a generalisation and specification¹  is expounded by itself,²  so that birds would not be included? — If so, the Divine Law should have inserted only one item in the specification.³  But which item should the Divine Law have inserted? For were the Divine Law to have inserted only 'ox' I might have suggested that an animal which was eligible to be sacrificed upon the altar⁴  should be included, but one which was not eligible to be sacrificed upon the altar⁵  should not be included. If on the other hand the Divine Law had inserted only 'ass'⁶  I might have thought that an animal which is subject to the sanctity of first birth⁷  should be included but that one which is not subject to the sanctity of first birth⁸  should not be included. [Why then still not exclude birds whose carcasses would, unlike those of the ox and the ass, defile neither by touching nor by carrying?] — It may still be said that if so, the Divine Law would have inserted 'ox' and 'ass'. Why then was 'sheep' inserted, unless to indicate the inclusion of birds [which would otherwise have been excluded]? But still why not say that you can [only] include birds which are [ritually] clean⁹  for food, as these in some way resemble sheep in that they defile the garments worn by him who swallows them¹⁰  [after they have become nebelah],¹¹  whereas birds [ritually] unclean for food¹²  which carry no defilement and do not cause the defilement of garments worn by him who swallows them¹³  should not be included? — [The term] 'all' is an amplification.¹⁴  [Does this mean to say that] whenever the Divine Law uses [the word] 'all' it is an amplification? What about tithes, where 'all' occurs and we nevertheless expounded it as a case of generalisation and specification? For it was taught: And thou shalt bestow that money for all that thy soul lusteth after¹⁵  is a generalisation; for oxen, or for sheep, or for wine, or for strong drink is a specification; or for all that thy soul desireth is again a generalisation. Now, where a generalisation precedes a specification which is in its turn followed by another generalisation, you include only that which is similar to the specification. As then the specification [here] mentions produce obtained from produce¹⁶  which springs from the soil¹⁷  there may also be included all kinds of produce obtained from produce¹⁸  which springs from the soil.¹⁹  [Does this not prove that the expression 'all' was taken as a generalisation, and not as an amplification?]²⁰  — It may, however, be said that [the expression] 'for all'¹⁵  is only a generalisation, whereas 'all' would be an amplification.²¹  Or if you wish I may say that [the term] 'all' is also a generalisation, but in this case 'all' is an amplification. For at the very outset we find here a generalisation preceding a specification followed in its turn by another generalisation, as it is written: If a man deliver unto his neighbour,²²  which is a generalisation, money or stuff which is a specification, to keep which generalises again. Should you assume that this verse for any matter of trespass etc. was similarly inserted in order to give us a generalisation preceding a specification followed in its turn by another generalisation, why did the Divine Law not insert these items of the specification [of the latter verse] along with the items of the former generalisation, specification and generalisation?²³  Why was the verse for any matter of trespass inserted at all, unless to prove that [this 'all'] was meant as an amplification?²⁴  But now that you have decided that the term 'all' is an amplification,²⁵  why do I need all these terms of the specification?²⁶  — One to exclude real estate, a second to exclude slaves and the third to exclude bills; 'raiment' to exclude articles which have no specification;²⁷  'or for any manner of lost thing' was meant as a basis for the view of R. Hiyya b. Abbah, as R. Hiyya b. Abba reported²⁸  that R. Johanan said:

1. [MS.M. omits 'in a … specification'.]
2. V. infra 64b.
3. Regarding objects possessing life.
4. As was the case with ox.
5. Such as an ass, horse, camel and the like.
6. Which would include also animals not eligible to be sacrificed upon the altar.
7. As is the case with ass; cf. Ex. XIII, 13.
8. Such as horses and camels and the like.
9. Deut. XIV, 11.
10. Cf. Hul. 100b.
11. I.e., a living creature which lost its life not through the prescribed method of ritual slaughter; cf. Glos.
12. Enumerated in Lev. XI, 13-20 and Deut. XIV, 12-19.
13. Cf. Hul. loc. cit.
14. I.e., the term 'all' does more than generalise, for it includes everything, v. supra p. 317. n. 7.
15. Deut. XIV, 26.
16. Such as wine from grapes.
17. Which characterises also cattle.
18. Excluding water, salt and mushrooms.
19. Thus excluding fishes. V. supra p. 317.
20. Which would have included all kinds of food and drink.
21. V. p. 318, n. 2.
22. Ex. XXII, 6.
23. In Ex. XXII, 6.
24. [That is, with reference to the double payment, whereas the generalisation in the preceding verse refers to the oath (v. Shebu. 43a)].
25. V. p. 366, n. 3.
26. Ox, ass, sheep or raiment.
27. According to Rashi it means that which has no distinguishing mark, but according to Tosaf, that which is not defined by measure, weight or number; see also Shebu. 42b and B.M. 47a.
28. Supra 57a.

He who falsely alleges the theft [to account for the non-production] of a find,¹  may have to make double payment,²  as it says, 'for any manner of lost thing whereof one saith …'³

We have learnt elsewhere:⁴  [If a man says to another] 'Where is my deposit?', and the bailee says 'It was lost', whereupon [the depositor says], 'I call upon you to swear' and the bailee says, 'So be it',⁵  if witnesses testify against him that he himself had consumed it, he has to pay [only] the principal,⁶  but if he admits [this] of himself, he has to pay the principal together with a fifth and a trespass offering.⁷  [If the depositor says] 'Where is my deposit?', and the bailee answers 'It was stolen!', [whereupon the depositor says] 'I call on you to swear', and the bailee says, 'So be it',⁵  if witnesses testify against him that he himself had stolen it, he has to make double payment,⁸  but if he admits [this] on his own accord, he has to pay the principal together with a fifth and a trespass offering.⁷  It is thus stated here that it is only where the bailee falsely alleges theft that he has to make double payment, whereas if he falsely alleges loss, he has not to make double payment. Again, even where he falsely alleges theft it is only where [he confirms the allegation] by an oath that he has to make double payment, whereas where no oath [follows] he has not to make double payment. What is the Scriptural authority for all this? — As the Rabbis taught: If the thief be found;⁹  this verse deals with a bailee¹⁰  who falsely alleges theft.¹¹  Or perhaps not so, but with the thief himself?¹²  — As, however, it is further stated, If the thief be not found,¹³  we must conclude that the [whole] verse¹⁴  deals with a bailee falsely advancing a plea of theft.¹⁵

Another [Baraitha] teaches: If the thief be found: this verse deals with the thief himself.¹⁶  You say that it deals with the thief himself. Why, however, not say that it is not so, but that it deals with a bailee falsely alleging theft? — When it further states, If the thief be not found this gives us the case of a bailee falsely alleging theft, How then can I explain [the verse] If the thief be found unless on the supposition that this deals with the thief himself!¹⁶  We see at any rate that all agree that [the verse] If the thief be not found deals with a bailee falsely alleging theft. But how is this implied [in the wording of the text]? — Raba said: [We understand the verse to say that] if it will not be found as he¹⁷  stated¹⁸  but that he himself had stolen it, he has to pay double. But whence can we conclude that this is so only in the case of an oath [having been falsely taken by the bailee]? — As it was taught: The master of the house shall come near unto the judges¹³  to take an oath. You say to take an oath. Why not say, however, that this is not so, but to stand his trial?¹⁹  — The words 'put his hand unto his neighbour's goods' occur in a subsequent section²⁰  and the words 'put his hand unto his neighbour's goods' occur in this section¹³  which precedes the other one; just as there²⁰  it is associated with an oath,²¹  so here also it should be associated with an oath. Now on the supposition²²  that one verse deals²³  with a thief and the other²⁴  with [a bailee falsely] alleging theft we quite understand why there are two verses; but on the supposition²⁵  that both of them deal with a bailee falsely alleging theft, why do I want two verses?²⁶  — It may be replied that one is to exclude the case of a false allegation of loss [from entailing double payment]. Now on the supposition²²  that one verse deals with a thief and the other with [a bailee falsely] alleging theft, in which case there will be no superfluous verse [in the text] whence can we derive the exclusion of a false allegation of loss [from entailing double payment]? — From [the definite article; as instead of] 'thief' [it is written] 'the thief'.²⁷  On the supposition²⁵  that both of the verses deal with [a bailee falsely] alleging theft, in which case Scripture excludes a bailee falsely alleging loss, how could [the fact that instead of] 'thief' [it is written] 'the thief' be expounded? — He might say to you that it furnishes a basis for the view of R. Hiyya b. Abba reported in the name of R. Johanan, as R. Hiyya b. Abba stated²⁸  that R. Johanan said that he who falsely alleges theft in the case of a deposit would have to make double payment, and so also if he slaughtered or sold it he would have to make fourfold or five-fold payment. But on the supposition²²  that one verse deals with a thief and the other with [a bailee falsely] alleging theft, and that [the fact that instead of] 'thief', 'the thief' [is written] has been used to exclude a false allegation of loss [from entailing double payment], whence could be derived the view of R. Hiyya b. Abba?²⁸  — He might say to you: A thief and a bailee falsely alleging theft are made analogous to one another in Scripture,²⁹  and no objections can be entertained against an analogy.³⁰  This is all very well on the supposition that one verse deals with a thief and the other with [a bailee falsely] alleging theft. But on the supposition that both of them deal with [a bailee falsely] alleging theft, whence can the law of double payment³¹  be derived in the case of a thief himself? And should you say that it can be derived by means of an a fortiori argument from the law of [a bailee falsely] alleging theft, [we may ask], is it not sufficient for the object to which the inference is made to be placed on the same footing as the object from which it is made,³²  so that just as there³³  [the penalty is entailed only where there] is false swearing, so here also³⁴  [it should be entailed only] where there is false swearing? — It could be derived by the reasoning taught at the School of Hezekiah. For it was taught at the School of Hezekiah: Should not Scripture have mentioned only 'ox' and 'theft'³⁵  as everything would thus have been included? — If so, I might say that just as the specification³⁶  mentions an object which is eligible to be sacrificed upon the altar any [living] object which is eligible to be sacrificed upon the altar should be included. What can you include through this? A sheep³⁷  [as subject to double payment].

1. I.e., an article found by him and which he has to return to its owner.
2. If he took an oath to substantiate his false plea.
3. Ex. XXII, 8.
4. Shebu. VIII, 3.
5. Which amounts to an oath; cf. Shebu. 29b.
6. But not double payment, as he did not allege theft.
7. In accordance with Lev. V, 21-25.
8. As by advancing the false plea of theft and substantiating it by an oath he became subject to the law applicable to theft.
9. Ex. XXII, 6.
10. I.e., unpaid.
11. The clause therefore means this: if he (the bailee) be found to have been the thief, he should pay double.
12. Whereas the bailee would never have to pay double.
13. Ex. XXII, 7.
14. Which should be construed thus: If it be not found as the bailee pleaded that it was stolen by a thief but that he himself was the thief etc.
15. V. the discussion later.
16. Who was found to have stolen the deposit, in which case the unpaid bailee is quit and the thief pays double.
17. The bailee.
18. That he became dispossessed of it by the thief.
19. And be ordered to pay.
20. Ibid. 10.
21. For the text runs: The oath of the Lord be between them both to see whether he hath not put his hands unto his neighbour's goods.
22. I.e., the second Baraitha.
23. Ex. XXII, 6.
24. Ex. XXII, 7.
25. I.e., the first Baraitha.
26. Presenting the same law.
27. Thus pointing out that the liability for double payment is only where it was the plea of theft that was proved to have been false.
28. Supra p. 364.
29. To be subject to the law of double payment which may lead on to a liability of four-fold or five-fold payment.
30. [H] infra 106b.
31. For misappropriating either an animate or inanimate object.
32. I.e., the principle of Dayyo, v. supra p. 126.
33. In the case of the bailee falsely pleading theft.
34. In the case of the thief himself.
35. In Ex. XXII, 3.
36. I.e., ox.
37. Which is similarly eligible to be sacrificed upon the altar.