Babylonian Talmud: Tractate Baba Kamma

Folio 105a

that [before the father died] he had already appeared in court¹  [and liability was established against him].²  But if he had already appeared in court¹  [and liability had been established on the denial of which the son took a false oath])³  why then should the son not pay even the Fifth?⁴  — Said R. Huna the son of R. Joshua: Because a Fifth is not paid for the denial of a liability which is secured upon real estate.⁵  But Raba said [that the misappropriated article was still extant in this case as the reason that the son need not pay a Fifth for his own false oath is because] we were dealing here with a case where [the misappropriated article was kept in] his father's bag⁶  that was deposited with others.⁷  The principal therefore must be paid since it was subsequently discovered to be in existence, whereas the Fifth has not to be paid since when the son took the oath he meant to swear truly, as at that time he did not know [that there was a misappropriated article in the estate].

WITH THE EXCEPTION, HOWEVER, OF LESS THAN THE VALUE OF A PERUTAH [DUE] ON ACCOUNT OF THE PRINCIPAL HE WOULD NOT HAVE TO GO AFTER HIM. R. Papa said: This Mishnaic ruling can apply only where the misappropriated article was no more in existence, for where the misappropriated article was still in existence the robber would still have to go after him, as there is a possibility that it may have risen in value.⁸  Others, however, said that R. Papa stated that there was no difference whether the misappropriated article was in existence or not in existence, as in all cases he would not have to go after him, since we disregard the possibility that it may rise in price.⁸

Raba said: If one misappropriated three bundles [of goods altogether] worth three perutahs, but which subsequently fell in price and become worth only two, and it so happened that he restored two bundles, he would still have to restore the third: this could also be proved from the [following] teaching of the Tanna:⁹  If one misappropriated leaven and Passover meanwhile came and went,¹⁰  he may say to the plaintiff, Here there is thine before thee.¹¹  The reason evidently is that the misappropriated article is intact, whereas if it were not intact, even though it has at present no pecuniary value, he would have to pay on account of the fact that it originally¹²  had some pecuniary value. So also in this case,¹³  though the bundle is now not of the value of a perutah, since originally it was of the value of a perutah he must pay for it.

Raba raised the question: What would be the law where he misappropriated two bundles amounting in value to a perutah and returned the plaintiff one? Do we lay stress on the fact that there is not now with him a misappropriated object of the value of a perutah,¹⁴  or do we say that since he did not restore the robbery¹⁵  which was with him he did not discharge his duty?¹⁶  Raba himself on second thoughts solved it thus: There is neither a robbery here¹⁷  nor is there the performance of restoration here.¹⁸  But if there is no robbery here,¹⁷  is it not surely because there was restoration here? — What he meant was this: Though there remained no robbery here,¹⁹  the performance of the injunction of restoration²⁰  was similarly not performed here.²¹

Raba said: It has been definitely stated²²  that a Nazirite who performed the duty of shaving²³  but left two hairs unshaved performed nothing at all [of the injunction]. Raba asked: What would be the law where he [subsequently] shaved one of the two and the other fell out of its own accord? — Said R. Aha of Difti²⁴  to Rabina: How could it have been doubtful to Raba whether a Nazirite would have performed his duty by shaving one hair after another?²⁵  — He replied:²⁶  No; the query has application where, e.g., one of the two hairs fell out of itself²⁷  and the other was shaved by him: Shall we say that [since] now there is no minimum of hair left unshaved [the duty of shaving has been performed], or was there perhaps no performance of shaving since originally he had left two hairs [unshaved] and when he [made up his mind to] shave them now, there were not two hairs to be shaved? On second thoughts Raba himself solved it thus: There is neither any hair here, nor is there the performance of shaving here. But if there is no hair [left] here, was not the duty of shaving surely performed here? — What he meant was this: Though there remained no hair, yet the performance of the injunction of shaving was not performed here.²⁸

Raba also said: It has been stated that if an earthenware barrel²⁹  had a hole which was filled up with lees, they would render it safe [and secure³⁰  while in a tent where a corpse of a human being was kept, as the barrel would be considered to have a covering tightly fastened upon it].³¹  Raba thereupon asked: What would be the law where only half of the hole was blocked up?³²  Said R. Yemar to R. Ashi: Is this not covered by our Mishnah? For we have learnt: 'If an earthenware barrel³³  had a hole which was filled up with lees, they would render it safe [and secure³⁴  while in a tent where a corpse of a human being was kept]. If it was corked up with vine shoots³⁵  it would not do unless it was smeared with mortar.³⁶  If there were two vine shoots corking it up they would have to be smeared on all sides as well as between one shoot and another.'³⁷  Now the reason why this is so is because it was smeared, so that if it would not have been smeared this would not have been so. But why should this not be like a case where half of the hole was blocked up?³⁸  — It might, however, be said that there is no comparison at all: for in that case if he did not smear it the blocking would not hold at all,³⁹  whereas here⁴⁰  half of the hole was blocked up with such a material as would hold.

Raba further said: It was stated: If one misappropriated leaven and Passover came and went, he may say to him. Here there is thine before thee.⁴¹  Raba thereupon asked:

1. Where he was summoned on the instigation of witnesses after he had already denied the claim with a false oath; in which case there is no liability of a Fifth, v. Mishnah 108b. Tosaf. a.l.
2. On the strength of impartial evidence.
3. The text contained in parenthesis, i.e. 'But … oath' is stated by Rashi a.l. to have been an unwarranted insertion on the part of unauthorised scribes, since according to the Mishnah infra 121a, the children are liable to make restitution where real possessions were left to them by their father; v. however Tosaf. a.l.
4. For the oath he himself took falsely.
5. As for the denial of such a liability no oath could be imposed; v. Shebu. VI, 5 and 37b.
6. Cf. [G], bisaccium.
7. So that while the son took the oath that the article was not with him, he meant to swear truly and could therefore not be made liable for perjury; cf. Shebu. 36b.
8. Cf. Kid. 12a.
9. Since at the time of the robbery its value was not less than a perutah.
10. And thus rendered the leaven unfit for any use.
11. Since no tangible change took place in the misappropriated article, v. supra 96b.
12. I.e., at the time of the robbery.
13. Regarding the bundles.
14. And should accordingly not have to pay for it.
15. I.e., the whole of it.
16. In accordance with Lev. V, 23.
17. In the hands of the defendant.
18. Since the whole restoration was of an article worth less than a perutah.
19. V. p. 609, n. 10.
20. V. p. 609, n. 9.
21. V. p. 609. n. 11.
22. V. Naz. 42a.
23. In accordance with Num. VI, 9 and 18.
24. V. supra 73a.
25. Is this not generally so in all cases of shaving? The injunction has surely been performed, since at the beginning of shaving the minimum number of hairs was not lacking.
26. I.e., Rabina to R. Aha.
27. Before he started to shave the two hairs.
28. [I.e., he has not fulfilled the relevant precept (Tosaf.).]
29. That was covered on all sides.
30. From becoming defiled.
31. And thus not be subject to Num. XIX, 15.
32. [Reducing it to less than the prescribed minimum to act as outlet (v. Kel. IX, 8).]
33. V. p. 610, n. 11.
34. V.p. 610, n. 12.
35. But not with lees.
36. For the purpose of blocking up the hole well.
37. Kel. X, 6.
38. Hence the query of Raba should be answered in the negative.
39. Hence the smearing is essential.
40. I.e., in the query of Raba.
41. Supra 96b.

What would be the law where [instead of availing himself of this plea] the robber took a [false] oath¹  [that he never misappropriated the leaven]? Shall we say that since if the leaven were to be stolen from him he would have to pay for it, there was therefore here a denial of money,²  or perhaps since the leaven was still intact and was [in the eyes of the law] but mere ashes, there was no denial here of an intrinsic pecuniary value?³  [It appears that] this matter on which Raba was doubtful was pretty certain to Rabbah, for Rabbah stated: [If one man says to another] 'You have stolen my ox'. and the other says. 'I did not steal it at all,' and when the first asks, 'What then is the reason of its being with you?' the other replies, 'I am a gratuitous bailee regarding it,' [and after affirming this defence by an oath he admitted his guilt], he would be liable,⁴  for by this [false] defence he would have been able to release himself from liability in the case of theft or loss;⁵  so also where the [false] defence was 'I am a paid bailee regarding it,' he would similarly be liable,⁴  as he would thereby have released himself from liability in the case where the animal became maimed or died;⁵  again, even where the false defence was that 'I am a borrower regarding it,' he would be liable,⁴  for he would thereby have released himself from any liability were the animal to have died merely because of the usual work performed with it.⁶  Now, this surely proves that though the animal now stands intact, since if it were to be stolen⁷  the statement would amount to a denial of money, it is even now considered to be a denial of money.⁴  So also here in this case though the leaven at present is considered [in the eyes of the law] to be equivalent to mere ashes, yet since if it were to be stolen he would have to pay him with proper value, even now there is a denial there of actual money.⁴

Rabbah⁸  was once sitting and repeating this teaching when R. Amram pointed out to Rabbah a difficulty [from the following]: And lieth concerning it⁹  [has the effect of] excepting a case where there is admission of the substance of the claim, as [where in answer to the plea] 'You have stolen my ox,' the accused says. 'I did not steal it,' but when the plaintiff retorts, 'What then is the reason of its being with you?' the defendant states, 'You sold it to me, you gave it to me as a gift, your father sold it to me, your father gave it to me as a gift, or the ox was running after my cow, or it came of its own accord to me, or I found it straying on the road, or I am a gratuitous bailee regarding it, or I am a paid bailee regarding it, or I am a borrower regarding it,' and after confirming [such a false defence] by an oath he admitted his guilt. But as you might say that he would be liable here, it is therefore stated further: And lieth concerning it,⁹  to except a case like this where there is an admission of the substance of the claim'!¹⁰  — He replied:¹¹  This argument is confused, for the teaching there dealt with a case where the defendant tendered him immediate delivery¹²  whereas the statement I made refers to a case where the animal was at that time kept on the meadow.¹³  But what admission in the substance of the claim could there be in the defence 'You have sold it to me?' — It might have application where the defendant said to him, 'As I have not yet paid you its value, take your ox back and go.' But still what admission in the substance of the claim is there in the defence, 'You gave it to me as a gift or your father gave it to me as a gift'? — It might be [admission] where the defendant said to him, '[As the gift was made] on the condition that I should do you some favour and since I did not do anything for you, you are entitled to take your ox back and go.' But again, where the defence was, 'I found it straying on the road,' why should the plaintiff not plead, 'You surely have had to return it to me'? — But the father of Samuel¹⁴  said: The defendant was alleging, and confirming it by an oath: 'I found it as a lost article and was not aware that it was yours to return it to you.'

It was taught: Ben 'Azzai said: [The following] three [false] oaths [taken by a single witness¹⁵  are subject to one law]:¹⁶  Where he had cognizance of the lost animal but not of the person who found it, of the person who found it but not of the lost animal, neither of the lost animal nor its finder.¹⁷  But if he had cognizance neither of the lost animal nor of its finder, was he not swearing truly?¹⁸  — Say therefore: '[He had cognizance] both of the lost animal and of its finder.¹⁹  To what decision does this statement²⁰  point? — R. Ammi said on behalf of R. Hanina: To exemption; but Samuel said: To liability. They are divided on the point at issue between the [following] Tannaim, as taught: 'Where a single witness was adjured²¹  [and the oath was subsequently admitted by him to have been false], he would be exempt, but R. Eleazar son of R. Simeon makes him liable.'²²  In what fundamental principle do they differ? — The [latter] Master²³  maintained that a matter which might merely cause some pecuniary liability²⁴  is regarded in law as directly touching upon money.²⁵  whereas the [other] Master maintained that it is not regarded as directly touching upon money.²⁶

R. Shesheth said: He who [falsely] denies a deposit is [instantly] considered as if he had misappropriated it, and will therefore become liable for all accidents;²⁷  this is also supported by the [following] Tannaitic teaching:²⁸  [From the verse] And he lieth concerning it²⁹  we could derive the penalty,³⁰  but whence could the warning be derived? From the significant words: Neither shall ye deal falsely.³¹  Now, does this not refer to the 'penalty' for merely having denied the money?³²  — No, it refers to the 'penalty' for the [false] oath.³³  But since the concluding clause refers to a case where an oath was taken, it surely follows that the commencing clause deals with a case where no oath was taken, for it was stated in the concluding clause:²⁸  [From the text] 'And sweareth falsely'²⁹  we can derive the penalty;³⁴  but whence can the warning be derived? From the injunction, 'Nor lie.'³⁵  Now, since the concluding clause deals with a case where an oath was taken, must not the commencing clause deal with a case where no oath was taken?³⁶  — It may, however, be said that the one clause as well as the other deals with a case where an oath was taken. But while in the case of the concluding clause the defendant admitted [his perjury], in that of the commencing clause witnesses appeared and proved it. Where witnesses appeared and proved the perjury,³⁷  the defendant would become liable for all accidents [from the very moment he took the false oath], whereas where he himself admitted his perjury he would be liable for the Principal and the Fifth and the trespass offering.³⁸  Rami b. Hama raised an objection [from the following]:³⁹  'Where the other party was suspected regarding the oath.⁴⁰  How so? [Where he took falsely] either an oath regarding evidence⁴¹  or an oath regarding a deposit⁴²  or an oath in vain.'⁴³  But if there is legal force in your statement,⁴⁴  would not that party have become disqualified from the very moment of the denial?⁴⁵  — It might, however, be said that we are dealing here with a case where the deposited animal was at that time placed on the meadow, so that the denial could not be considered a genuine one, since he might have thought to himself, 'I will get rid of the plaintiff for the time being [so that he should no more press me for it] and later I will go and deliver up to him the deposited animal.'⁴⁶  This view could even be proved [from the following statement]:⁴⁷  R. Idi b. Abin said that he who [falsely] denies a loan⁴⁸  is not yet disqualified from giving evidence,⁴⁹

1. After Passover.
2. For which he should be subject to Lev. V, 21-25.
3. And if this is the case the perjurer should be subject only to Lev. V, 4-10.
4. In accordance with Lev. V, 21-25.
5. For which a thief is liable but not a bailee.
6. Which is a valid defence in the case of a borrower but not in that of a thief.
7. In the case he swore he was an unpaid bailee.
8. So in MS.M. [This is to be given preference to the reading 'Raba' of cur. edd. as Raba was doubtful on the matter under discussion.]
9. Lev. V, 22.
10. Why then has Rabbah made a statement to the contrary effect?
11. I.e., Rabbah to R. Amram.
12. Lit., 'said to him, here is thine.' In which case there is no denial of money.
13. And there is therefore a potential denial of money.
14. I.e., Abba b. Abba.
15. So interpreted by Rashi, but v. Malbim on Lev. V, 22, n. 374.
16. Referring to Lev. V, 1. On the question whether it refers to the law of liability or exemption v. the discussion that follows.
17. Cf. Sifra on Lev. V, 22.
18. And no perjury at all was committed.
19. And took nevertheless an oath to the contrary.
20. I.e., whether to that of liability or to that of exemption.
21. To deliver evidence on a pecuniary matter and he falsely denied any knowledge of it.
22. Shebu. 32a.
23. I.e. R. Eleazar b. Simeon who follows the view of his father, cf. supra 71b.
24. I.e., such as where the evidence in question would not directly have any bearing upon a pecuniary matter but might indirectly at a subsequent stage bring about a pecuniary liability; this is so in the case of one witness whose evidence is not sufficient to establish pecuniary liabilities as stated in Deut. XIX, 15, but whose testimony is accepted for the purpose of imposing an oath upon a defendant who, if unprepared to swear, would have to make full payment; v. Shebu. 40a and 41a.
25. And the law of Lev. V, 1 has to apply.
26. The law of Lev. V, 1 could therefore not apply in the case of one witness.
27. In accordance with the law applicable to robbers.
28. Sifra on Lev. XIX, 11.
29. Lev. V, 22.
30. The restitution he is obliged to make, ibid. 23.
31. Ibid. XIX, 11.
32. I.e., even before having committed perjury; the fine thus being his becoming liable for all accidents.
33. In accordance with Lev. V, 21-24.
34. The Fifth and Guilt offering.
35. Lev. XIX, 11.
36. The penalty thus being his becoming liable for all accidents.
37. In which case Lev. V, 21-24 does not apply as gathered from Num. V, 7; v. infra 108b.
38. V. p. 614, n. 13.
39. Shebu. VII, 4.
40. The plaintiff will take the oath.
41. Dealt with in Lev. V, 2 and Shebu. IV.
42. Cf. Lev. V, 21-23.
43. Cf. ibid. V, 4.
44. That by mere denial of a deposit the depositor becomes subject to the law of robbery.
45. Even before having taken the false oath.
46. For the ruling of R. Shesheth applies only to a case where it was definitely proved that at the time of the denial the deposit was actually in the hands of the depositor.
47. B.M. 4a, 5b and Shebu. 40b.
48. Without, however, having taken an oath.
49. For since the denial was not confirmed by an oath it might have been made merely for the time being. i.e., to get rid of the plaintiff who pressed for immediate payment.