Babylonian Talmud: Tractate Baba Kamma

Folio 68a

could he then be called 'rooted in sin' [since the sale is of no validity]? It must therefore be after Renunciation.¹  But if you assume that Renunciation transfers ownership, why should he make four-fold and five-fold payments,²  when it is his that he slaughters and his that he sells? — It may, however, be said as Raba stated elsewhere,³  that it means 'because he doubled⁴  his sin,' so likewise here it means, 'because he doubled his sin.'⁵

Come and hear: 'He slaughtered it and sold it;⁶  just as the slaughter cannot be undone so the sale cannot be undone.' Now, when could this be so? If before Renunciation, why can it not be undone?⁷  It must surely therefore be after Renunciation.¹  But if you assume that Renunciation transfers ownership, why should he pay fourfold and five-fold⁸  when it is his that he slaughters and his that he sells? — As R. Nahman stated elsewhere, that it means to except a case where he transferred the animal for thirty days,⁹  so also here it means to except a case where he transferred the beast for thirty days.¹⁰

An objection was raised [against this]: If a man steals an article and another comes and steals it from him, the first thief has to make double payment, whereas the second will not pay [anything] but the principal alone.¹¹  If, however, one stole [a sheep or an ox] and sold it, after which another one came and stole it, the first thief has to make four-fold and five-fold payments [respectively], while the second has to make double payment.¹²  If one stole [a sheep or an ox] and slaughtered it, and another one came and stole it, the first thief will make four-fold and five-fold payments [respectively], whereas the second has not to make double payment but to repay the principal only.¹¹  Now, it has been taught in the middle clause: 'If however, one stole [a sheep or an ox] and sold it, after which another came and stole it, the first thief has to make four-fold and five-fold payments [respectively], while the second has to make double payment.'¹²  But when could this be? If before Renunciation, why should the second make¹²  double payment?¹³  Is there any authority who maintains that a change in possession without Renunciation transfers ownership? It must therefore be after Renunciation. But if you assume that Renunciation transfers ownership, why then has he to make four-fold and five-fold payments,¹⁴  seeing that it is his which he sold? And further, it was taught in the opening clause: 'If a man steals an article and another comes and steals it from him, the first thief has to make double payment, but the second will not pay [anything] but the principal.'¹¹  Now, since it is the time after Renunciation with which we are dealing, if you assume that Renunciation transfers ownership, why should the second 'not pay anything but the principal'?¹⁵  Does not this show that Renunciation does not transfer ownership, in contradiction to the view of Rab? — Raba said: Do you really think that the text of this teaching is correct? For was it not taught in the concluding clause: 'If one stole [a sheep or an ox] and slaughtered it and another came and stole it, the first thief will make fourfold and five-fold payments [respectively], whereas the second has to pay nothing but the principal'? Now, is there any authority who maintains that a change in substance does not transfer ownership?¹⁶  It must therefore surely still be said that the whole teaching refers to the time before Renunciation, but we have to transpose the ruling of the concluding clause to the case in the middle clause, and the ruling of the middle clause to the case in the concluding clause and read thus: If one stole [a sheep or an ox] and sold it, and another came and stole it, the first thief has to make four-fold and five-fold payments [respectively], but the second has not to pay anything but the principal, as a change in possession without Renunciation transfers no ownership. If, however, one stole [a sheep or an ox] and slaughtered it and another came and stole it, the first thief makes four-fold and five-fold payments [respectively], and the second makes double payment,¹⁷  as ownership was transferred [to the first thief] by the change in substance.' R. Papa, however, said: All the same¹⁸  you need not transpose [the rulings], since [we may say that] the concluding clause is in accordance with Beth Shammai, who maintain¹⁹  that a change leaves the article in its previous status. But if so [that it was after Renunciation], will not the opening clause and middle clause be in contradiction to the view of Rab? — R. Zebid therefore said: The whole text could still refer to the time before Renunciation, as we are dealing here with a case where the owner abandoned hope [of regaining the stolen object] when it was already in the possession of the buyer, but had not abandoned it while it was still in the possession of the thief, so that [so far as the buyer was concerned] there was Renunciation [as well as a change in possession].²⁰  You should, however, not think [that this is so] because we need both Renunciation and a change in possession for the purpose of transferring ownership, as even Renunciation alone would also transfer ownership²¹  to the thief.²²  It is, however, impossible to find a case in which both the first thief and the second thief should simultaneously pay except in this way.²³

It was stated: If the thief sells before Renunciation, R. Nahman said that he is liable, while R. Shesheth said that he is exempt. R. Nahman who said that he would be liable held that since the Divine Law says 'and he sold it' and as the thief [in this case] did sell it, it makes no difference whether it was before Renunciation or after Renunciation, while R. Shesheth, who said that he would be exempt, held that the liability was only where he sold it after Renunciation,²⁴  where the act has a legal validity, whereas before Renunciation, when the act has no legal validity,²⁵  there could be no liability, as selling is compared to slaughter where it is necessary that the act should be of practical avail. R. Shesheth said: Whence have I inferred the view expressed by me? It was taught: 'R. Akiba said: Why does the Torah say that where the thief slaughtered and sold the stolen [sheep or ox] he should make four-fold and five-fold payments respectively? Because he became thereby rooted in sin.' Now, when could this be said of him? If before Renunciation, could he then be called 'rooted in sin' [since the sale is of no legal validity]?²⁵  Must it therefore not be after Renunciation?²⁴  — Raba said: It only means, because he doubled his sin.²⁶

Come and hear: 'And he slaughtered it or sold it,'²⁷  just as slaughter cannot be undone, so the sale [must be one] which cannot be undone.' Now, when could this be so? If before Renunciation, why can it not be undone?²⁸  Must it therefore not be after Renunciation,²⁹  thus proving that the liability is only if it is sold after Renunciation?²⁹  — But R. Nahman interpreted it merely to except a case where he transferred the animal for thirty days.³⁰  Also R. Eleazar maintained that the liability would be only after Renunciation, as R. Eleazar stated:

1. In which case the article will have to remain with the purchaser, as a transfer of possession taking place after Renunciation certainly transfers ownership.
2. For slaughtering or selling after Renunciation when the thief has already become the legal owner of the animal.
3. Infra p. 393.
4. Lit., 'repeated'.
5. By selling the animal even though the sale is of no validity.
6. V. p. 388, n. 11.
7. For a transfer of possession before Renunciation will certainly transfer no ownership to the buyer.
8. P. 390, n. 5.
9. V. p. 394, n. 4.
10. Not to be subject to the law of selling or slaughtering.
11. To the first thief.
12. To the purchaser.
13. For a transfer of possession before Renunciation will certainly transfer no ownership to the buyer.
14. For selling after Renunciation when the thief has already become the legal owner of the animal.
15. Why not pay double to the first thief who had already become the legal owner of the object through Renunciation?
16. [Why not pay double to the first thief who had already become the legal owner through effecting a change in the substance of the article stolen?]
17. V. p. 391, n. 4.
18. Even though the teaching refers to the time after Renunciation.
19. Supra p. 380.
20. And for this reason the second in the middle clause has to make double payment to the buyer.
21. In accordance with the view of Rab.
22. [Mss. omit rightly 'to the thief'; v. D.S. a.l.]
23. For if Renunciation took place while the article was still in the hands of the first thief, he would not have to make four-fold and five-fold payments for a subsequent sale or slaughter.
24. In which case the article will have to remain with the purchaser, as a transfer of possession taking place after Renunciation certainly transfers ownership.
25. V. p. 391, n. 6.
26. By selling the animal even though the sale is of no validity.
27. Ex. XXI, 37.
28. V. p. 391, n. 6.
29. I.e., where the sale is of legal avail.
30. But not any other case.

'You can take it for granted that in the ordinary run of thefts there is Renunciation on the part of the owner; since the Torah has laid down that where the thief slaughtered or sold [the stolen sheep or ox] he should pay fourfold or five-fold payments [respectively]. For is there not a possibility that the owner had not abandoned hope? We must therefore say that in the ordinary run of thefts there is Renunciation on the part of the owner.'¹  But why should the liability not hold good even where hope was not abandoned?²  — I would say, let not this enter your mind. For selling is placed on a par with slaughter: just as in the case of slaughter his act is of practical avail, so also in the case of selling his act should be of practical validity; and if it takes place before Renunciation, what would be the legal validity?¹  But again can it not be [that the liability is confined to cases] where we actually heard the owner abandoning hope? — I would reply, let not this enter your mind. For selling is put on a par with slaughter, and just as slaughter involves liability [if carried out] immediately [after the theft], so would selling similarly involve liability soon after the theft.³

R. Johanan said to him:⁴  The law in the case of stealing a man⁵  could prove that even where there is no Renunciation on the part of the owner⁶  there will be liability. This statement seems to show that R. Johanan held that selling before Renunciation involves liability.⁷  What then about selling after Renunciation?⁸  — R. Johanan said that the thief is liable, but Resh Lakish said he is exempt. R. Johanan who said that he would be liable held that the liability was both before Renunciation and after Renunciation. But Resh Lakish, who said that he would be exempt,⁹  maintained that the liability was only before Renunciation, whereas after Renunciation he would have already acquired title to the animal, and it was his that he slaughtered and his that he sold.

R. Johanan objected to Resh Lakish's view [from the following:] If he stole [a sheep or an ox] and after consecrating it slaughtered it, he should make double payment¹⁰  but would not make four-fold and five-fold payments.¹¹  Now, when could this be? If before Renunciation, how does the animal become consecrated? Does not the Divine Law say 'And when a man shall sanctify his house to be holy',¹²  [implying that] just as his house is his,¹³  so also anything he consecrates must be his?¹⁴  It must therefore apply to the time after Renunciation.¹⁵  Now the reason is that he consecrated it: he has not to make four-fold and five-fold payments because when he slaughtered the animal it was a consecrated animal that he slaughtered; had he not, however, consecrated it he would have had to make four-fold and five-fold payments if he would have slaughtered it. Now, if you assume that Renunciation transfers ownership why should he¹⁶  pay since it was his that he slaughtered and his that he sold? — He replied:¹⁷  We are dealing here with a case where, for instance, the owner¹⁸  consecrated the animal while it was in the possession of the thief.¹⁹  But will it in that case become consecrated? Did not R. Johanan say²⁰  that where a robber misappropriated an article and the owner has not abandoned hope of recovering it, neither of them is able to consecrate it: the one²¹  because it is not his, the other²²  because it is not in his possession? — We might reply that he²³  had in mind the practice of the virtuous, as we have learnt: The virtuous²⁴  used to set aside money and to declare that whatever has been gleaned [by passers-by] from this [vineyard]²⁵  shall be redeemed by this money.²⁶  But [if the owner consecrated the animal], has not the principal thus been restored to the owner? [Why then should a thief pay double on it? — We assume a case where the consecration took place] after the case came into court [and evidence had already been given against the thief]. What were the circumstances? If the judges had already ordered him to go and pay the owner, why should exemption be only where he consecrated the animal? Why even where the owner did not consecrate it should the thief be liable? For did Raba not say that if [after the judges said], 'Go forth and pay him,' the thief slaughtered or sold the animal, he would be exempt, the reason being that since the judges had given their final sentence 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 pay four-fold and five-fold payments,²⁷

1. [Since he conditions the liability of the fourfold and five-fold by the fact that the owner had despaired of the stolen article, it is evident that he agrees with R. Shesheth.]
2. [Even where the sale is of no legal avail.]
3. R. Eleazar thus inferred from this that in ordinary thefts there is immediate Renunciation on the part of the owner.
4. I.e., R. Eleazar.
5. Ex. XXI, 16.
6. For surely no human being will abandon himself.
7. As also maintained by R. Nahman.
8. Does he agree in this with Rab, supra p. 390?
9. V. p. 390, n. 5.
10. For the theft.
11. For the slaughter as it was a consecrated animal that he slaughtered, and there is no liability for stealing and selling and slaughtering consecrated animals (infra p. 427; Git. 55b).
12. Lev. XXVII, 14.
13. For immovables even when misappropriated always remain in the possession of the owner
14. Excluding thus a thief consecrating misappropriated property.
15. In which case the article could become consecrated, as a transfer of possession following Renunciation transfers ownership.
16. V. p. 390, n. 2.
17. I.e., Resh Lakish to R. Johanan.
18. Not the thief.
19. [Before Renunciation.]
20. Infra p. 397; B.M. 7a.
21. The robber.
22. The owner.
23. I.e., Resh Lakish.
24. [ [H] (plur. [H]) 'denotes a positive quality, probably nothing else but discretion or modesty', Buchler, Types (contra Kohler, who identifies the Zenu'im with Essenes) pp. 59 ff.]
25. In its fourth year, the fruit of which is prohibited unless redeemed, cf. Lev. XIX, 24.
26. Which seems to show that fruits already misappropriated could also be redeemed by the owner and thus also consecrated. (M.Sh. V, 1).
27. For the distinction between robber and thief in this respect cf. infra p. 452.