Babylonian Talmud: Tractate Baba Kamma

Folio 79a

or if he stole it and consecrated it, or if he stole it and sold it on credit, or if he stole it and bartered it, or if he stole it and gave it as a gift, or if he stole it and paid a debt with it, or if he stole it and paid it for goods he had obtained on credit, or if he stole it and sent it as a betrothal gift to the house of his father-in-law, he would have to make four-fold and five-fold payments.¹  What is this meant to tell us? [Is not all this obvious?] — The new point lies in the opening clause: 'If he stole [a sheep or an ox] and gave it to another person who slaughtered it', [which implies] that in this case the law of agency has application even for a matter involving transgression.²  Though in the whole of the Torah [there is] no [case of an] agent entrusted with a matter involving transgression [rendering the principal liable],³  sin this case an agent entrusted with a matter involving transgression would render his principal liable, the reason being [that Scripture says]: 'And he slaughter it or sell it', implying that just as a sale cannot be effected without the intervention of some other person,⁴  so also where the slaughter was effected [by some other person authorised by the thief to do so the thief would be liable]. There is also a new point in the concluding clause: 'Where he stole it and consecrated it', which tells us that it makes no difference whether he disposed of it to a private person or whether he disposed of it to the ownership of Heaven.⁵

MISHNAH. IF HE STOLE [A SHEEP OR AN OX] IN THE PREMISES OF THE OWNERS AND SLAUGHTERED IT OR SOLD IT OUTSIDE THEIR PREMISES, OR IF HE STOLE IT OUTSIDE THEIR PREMISES AND SLAUGHTERED IT OR SOLD IT ON THEIR PREMISES, OR IF HE STOLE IT AND SLAUGHTERED IT OR SOLD IT OUTSIDE THEIR PREMISES, HE WOULD HAVE TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT.⁶  BUT IF HE STOLE IT AND SLAUGHTERED IT OR SOLD IT IN THEIR PREMISES, HE WOULD BE EXEMPT.⁷  IF AS HE WAS PULLING IT OUT IT DIED WHILE STILL IN THE PREMISES OF THE OWNERS, HE WOULD BE EXEMPT,⁷  BUT IF IT DIED AFTER HE HAS LIFTED IT UP⁸  OR AFTER HE HAD ALREADY TAKEN IT OUT OF THE PREMISES OF THE OWNERS,⁹  HE WOULD BE LIABLE.¹⁰  SO ALSO IF HE GAVE IT TO A PRIEST FOR THE REDEMPTION OF HIS FIRST-BORN SON¹¹  OR TO A CREDITOR, TO AN UNPAID BAILEE, TO A BORROWER, TO A PAID BAILEE OR TO A HIRER, AND AS HE WAS PULLING IT OUT¹²  IT DIED WHILE STILL IN THE PREMISES OF THE OWNERS, HE WOULD BE EXEMPT; BUT IF IT DIED AFTER HE HAD LIFTED IT UP OR ALREADY TAKEN IT OUT OF THE PREMISES OF THE OWNERS, HE¹³  WOULD BE LIABLE.

GEMARA. Amemar asked: Was the formality of pulling instituted¹⁴  also in the case of bailees¹⁵  or not? — R. Yemar replied: Come and hear: IF HE GAVE IT TO A PRIEST FOR THE REDEMPTION OF HIS FIRST-BORN SON, TO A CREDITOR, TO AN UNPAID BAILEE, TO A BORROWER, TO A PAID BAILEE OR TO A HIRER AND AS HE WAS PULLING IT OUT IT DIED WHILE IN THE PREMISES OF THE OWNERS HE WOULD BE EXEMPT. Now, this means, does it not, that the bailee was pulling it out, thus proving that the requirement of pulling was instituted also in the case of bailees?¹⁶  — No, he rejoined; the thief was pulling it out.¹⁷  But was not this already stated in the previous clause?¹⁸  — There it was stated in regard to a thief stealing from the house of the owners, whereas here it is stated in regard to a thief stealing from the house of a bailee. Said R. Ashi to him [Amemar]: Do not bring such arguments; what difference does it make whether the thief stole from the house of the bailee or from the house of the owners?¹⁹  No; it must mean that the bailee was pulling it out, thus proving that pulling was instituted also in the case of bailees.¹⁶  This can indeed he regarded as proved.

It was also stated that R. Eleazar said: Just as the Sages instituted pulling in the case of purchasers, so also have they instituted pulling in the case of bailees.²⁰  It has in fact been taught likewise: Just as the Sages instituted pulling in the case of purchasers, so have they instituted pulling in the case of bailees, and just as immovable property is transferred by the medium of money payment, a deed or possession,²¹  so also is the case with hiring which is similarly acquired by the medium of money, a deed or possession. The hire of what? If you say

1. Tosef. B.K. VII.
2. For which cf. supra 71a, so that the principal will be liable to the fine for the act of slaughter committed by his agent.
3. Cf. Kid. 42b and supra 51a.
4. I.e. the purchaser.
5. Provided, however, that he did not consecrate it to be sacrificed as an offering upon the altar, in which case the transfer would not he complete as supra 76a, but where the animal was blemished and he consecrated it to become a permanent asset of the Temple treasury (Tosaf.).
6. For as soon as he removed it from the premises of the owners the act of theft became complete.
7. As in this case the theft has never become complete.
8. As by lifting up possession is transferred even while in the premises of the owner; cf. Kid. 25b.
9. By the act of pulling possession is not transferred unless the animal has already left the premises of the owners.
10. For as soon as the animal came into the possession of the thief the theft became complete.
11. I.e., for the five shekels; v. Num. XVIII. 16.
12. V. the discussion in Gemara.
13. The thief.
14. As it was instituted in the case of purchasers for which cf. B.M. IV. 1 and 47b.
15. So that the act of pulling would be essential for making the contract of bailment complete.
16. So that by the act of pulling carried out by the bailee the contract of bailment became complete and the animal could thus be considered as having been transferred from the possession of the owner to that of the thief represented by the bailee who acted on his behalf.
17. After the owner handed over the animal to any one of those enumerated in the Mishnah.
18. That the act of pulling is one of the requirements essential to make the theft complete.
19. Why then deal with them separately.
20. B.M. 99a.
21. Cf. Kid. 27a.

the hire of movables, are movables transferred by a deed?¹  — Said R. Hisda: The hire of immovable property.

R. Eleazar stated: If a thief was seen hiding himself in forests [where flocks pasture] and slaughtering or selling [there sheep or oxen], he would have to make four-fold or five-fold payment. But why so, since he did not pull the animal?²  — Said R. Hisda: We suppose that he struck it with a stick [and thus drew it towards himself]. But I would still ask, since he was seen doing this [publicly], should he on this account not be [subject to the law applicable to] a robber [who has not to pay any fines]?³  — Since [at the same time] he was hiding himself from the public he is [subject to the law applicable to] a thief.⁴

How then would you define a robber? — Said R. Abbahu: One, for instance, like Benaiah the son of Jehoiadah, of whom we read:⁵  And he plucked the spear out of the Egyptian's hand and slew him with his own spear. R. Johanan said: Like the men of Shechem of whom we read:⁶  And the men of Shechem set liers in wait for him on the tops of the mountains, and they robbed all that came along that way by them: and it was told Abimelech. Why did R. Abbahu not give his instance from this last source? He could say that since these were hiding themselves they could not be called robbers. And R. Johanan? — He could argue that the reason they were hiding themselves was so that people should not notice them and run away from them.⁷

The disciples of R. Johanan b. Zakkai asked him why the Torah was more severe on a thief⁸  than on a robber.⁹  He replied: The latter¹⁰  puts the honour of the slave¹¹  on the same level as the honour of his owner,¹²  whereas the former¹³  does not put the honour of the slave on the same level as the honour of the master [but higher], for, as it were, he acts as if the eye of Below¹⁴  would not be seeing and the ear of Below would not be hearing, as it says: Woe unto them that seek deep to hide their counsel from the Lord, and their works are in the dark, and they say, Who seeth us? and who knoweth us?¹⁵  Or as it is written: And they say, The Lord will not see, neither will the God of Jacob give heed;¹⁶  or, as again it is written, For they say, the Lord hath forsaken the earth and the Lord seeth not.¹⁷  It was taught:¹⁸  R. Meir said: The following parable is reported in the name of R. Gamaliel. What do the thief and the robber resemble? Two people who dwelt in one town and made banquets. One invited the townspeople and did not invite the royal family, the other invited neither the townspeople nor the royal family.¹⁹  Which deserves the heavier punishment? Surely the one who invited the townspeople but did not invite the royal family.

R. Meir further said: Observe how great is the importance attached to labour, for in the case of an ox [stolen and slaughtered] where the thief interfered with its labour²⁰  he has to pay five-fold, while in the case of a sheep where he did not disturb it from its labour²¹  he has to pay only four-fold. R. Johanan b. Zakkai said: Observe how great is the importance attached to the dignity of Man, for in the case of an ox which walks away on its own feet²²  the payment is five-fold, while in the case of a sheep which was usually carried on the thief's shoulder only four-fold has to be paid.²³

MISHNAH. IT IS NOT RIGHT TO BREED SMALL CATTLE²⁴  IN ERETZ YISRAEL.²⁵  THEY MAY HOWEVER BE BRED IN SYRIA OR IN THE DESERTS OF ERETZ YISRAEL. IT IS NOT RIGHT TO BREED HENS²⁶  IN JERUSALEM ON ACCOUNT OF THE SACRIFICES,²⁷  NOR MAY PRIESTS DO SO THROUGHOUT THE WHOLE OF ERETZ YISRAEL, ON ACCOUNT OF THEIR FOOD²⁸  WHICH HAS TO BE RITUALLY CLEAN.²⁹  IT IS NOT RIGHT TO BREED PIGS IN ANY PLACE WHATEVER.³⁰  NO MAN SHOULD BREED A DOG³¹  UNLESS IT IS ON A CHAIN. IT IS NOT RIGHT TO PLACE NETS FOR DOVES UNLESS AT A DISTANCE OF THIRTY RIS³²  FROM INHABITED SETTLEMENTS.³³

GEMARA. Our Rabbis taught: It is not right to breed small cattle in Eretz Yisrael but they may be bred in the woods³⁴  of Eretz Yisrael or in Syria even in inhabited settlements, and needless to say also outside Eretz Yisrael. Another [Baraitha] taught: 'It is not right to breed small cattle in Eretz Yisrael. They may, however, be bred in the deserts of Judah and in the desert at the border of Acco.³⁵  Still though the Sages said: 'It is not right to breed small cattle' it is nevertheless quite proper to breed large cattle, for we should not impose a restriction upon the community unless the majority of the community will be able to stand it. Small cattle could be imported from outside Eretz Yisrael, whereas large cattle could not be imported from outside Eretz Yisrael.³⁶  Again, though they said: 'It is not right to breed small cattle', one may nevertheless keep them before a festival for thirty days and similarly before the wedding festivity of his son for thirty days. He should, however, not retain the animal last bought for thirty days [if these expire after the festival]. So³⁷  that if the festival had already gone, though since from the time he bought the animal until that time thirty days had not yet elapsed we do not say that a period of thirty days is permitted for keeping the animal, but [we are to say that] as soon as the festival has gone he should not retain it any longer.

1. Are they not acquired solely by the medium of pulling as stated in Kid. ibid.?
2. The theft never became complete.
3. For a robber has to restore only the article taken by him or its value.
4. Who is liable to fine.
5. II Sam. XXIII, 21.
6. Jud. IX, 25.
7. But not out of any fear.
8. That he has to pay double payment for the theft and four-fold and five-fold payments for the subsequent slaughter or sale of the stolen sheep and ox respectively in accordance with Ex. XXI, 37.
9. Who has to pay only the thing misappropriated by him or its value, in accordance with Lev. V, 23.
10. I.e., the robber by committing the crime publicly.
11. I.e., human society.
12. I.e., the Creator.
13. I.e., the thief by committing his crime by stealth.
14. Euphemism for 'Heaven'; cf. Ab. II. 1.
15. Isa. XXIX. 15.
16. Ps. XCIV. 7.
17. Ezek. IX, 9.
18. [Rashal deletes 'It was taught', as this is the continuation of the preceding passage in Tosef. B.K. VII.]
19. So also in the case of the thief and the robber the former equals the former and the latter the latter; cf. however B.B. 88b.
20. For an ox usually labours in the field; cf. Deut. V, 14; Isa. XXX, 24 and Prov. XIV, 4.
21. As it is in any case not fit for work.
22. While the thief misappropriates it.
23. Mek. on Ex. XXII, 6.
24. As these usually spoil the crops of the field. Cf. supra p. 118.
25. Where the produce of the fields was of public concern.
26. As these usually peck in dunghills and expose impurities.
27. Which are eaten there and might easily be defiled by some impurity brought by the chickens.
28. Consisting mainly of terumah (v. Glos.).
29. In accordance with Lev. XXII. 6-7.
30. Cf. Gemara.
31. As by barking it might frighten pregnant women and cause miscarriages.
32. I.e., four miles, cf. Glos.
33. So that doves belonging to private owners in the settlement should not be enticed into the nets.
34. Which were considered common property.
35. [MS.M.: Kefar Amiko, N. of Acco, v. Klein, NB.p. 9.]
36. And cattle could not be dispensed with in an agricultural country where they are vital for field work.
37. [Following MS.M., which omits 'For you might think' occurring in cur. edd., the whole passage appears to be a copyist's gloss on the cited Baraitha; v. D.S. a.l.]