Babylonian Talmud: Tractate Baba Kamma

Folio 111a

that she was quite prepared to accept any conditions,¹  as we learn from Resh Lakish; for Resh Lakish said:²  it is better [for a woman] to dwell as two³  than to dwell in widowhood.⁴

WHERE HE GAVE THE MONEY TO JEHOIARIB AND THE TRESPASS OFFERING TO JEDAIAH etc. Our Rabbis taught: Where he gave the trespass offering to Jehoiarib and the money to Jedaiah the money will have to be brought to [whom] the trespass offering [is due].⁵  This is the view of R. Judah, but the Sages say that the trespass offering will have to be brought⁶  to [whom] the money [is due].⁷  What are the circumstances? Do we suppose that the trespass offering was given to Jehoiarib during the [time of the] division of Jehoiarib and so also the money was given to Jedaiah during the [time of the] division of Jedaiah? If so, why should the one not acquire title to his and the other to his?⁸  — Said Raba: We are dealing here with a case where the trespass offering was given to Jehoiarib during the [time of the] division of Jehoiarib and [so also] the money was given to Jedaiah during [the time of] the division of Jehoiarib. In such a case R. Judah maintained that since it was not [the time of] the division of Jedaiah,⁹  it is Jedaiah whom we ought to penalise, and the money has therefore to be brought to the [place of the] trespass offering,⁵  whereas the Rabbis maintained that as it was the members of the Jehoiarib division that acted unlawfully⁷  in having accepted the trespass offering before the money,¹⁰  it is they who have to be penalised and the trespass offering accordingly should be brought⁶  to the [place where] the money [is due].⁷

It was taught: Rabbi said: According to the view of R. Judah, if the members of the Jehoiarib division had already sacrificed the trespass offering,¹¹  the robber would have to come again and bring another trespass offering which will now be sacrificed by the members of the Jedaiah division,¹²  though the others¹³  would acquire title to that which remained in their possession.¹⁴  But I would fain ask: For what could the disqualified trespass offering have any value? — Said Raba: For its skin.¹⁵

It was taught: Rabbi said: According to R. Judah, if the trespass offering was still in existence, the trespass offering will have to be brought¹⁶  to [whom] the money [is due]. But is R. Judah not of the opinion that the money should be brought to [whom] the trespass offering [is due]?¹⁷  We are dealing here with a case where e.g. the division of Jehoiarib has already left without, however, having made any demand,¹⁸  and what we are told therefore is that this should be considered as a waiving of their right in favour of the members of the division of Jedaiah.

Another [Baraitha] taught again: Rabbi said: According to R. Judah, if the trespass offering was still in existence, the money would have to be brought to [whom] the trespass offering [is due].¹⁹  But is this not obvious, since this was actually his view? — We are dealing here with a case where e.g., the divisions of both Jehoiarib and Jedaiah have already left without having made any demand [on each other].²⁰  In this case you might have thought that they mutually waived their claim on each other.²¹  We are therefore told that since there was no demand from either of them²²  we say that the original position must be restored.²³

FOR HE WHO BRINGS [THE PAYMENT FOR] ROBBERY BEFORE HAVING BROUGHT THE TRESPASS OFFERING [FULFILLS HIS DUTY, WHEREAS HE WHO BRINGS THE TRESPASS OFFERING BEFORE HAVING BROUGHT THE PAYMENT FOR ROBBERY DID NOT FULFILL HIS DUTY]. Whence can these rulings be derived? — Said Raba: Scripture states: Let the trespass be restored unto the Lord, even to the priest, beside the ram of the atonement whereby an atonement shall be made for him,²⁴  thus implying²⁵  that the money must be paid first. One of the Rabbis, however, said to Raba: But according to this reasoning will it not follow that in the verse: Ye shall offer these beside the burnt offering in the morning²⁶  it is similarly implied²⁷  that the additional offering will have to be sacrificed first? But was it not taught:²⁸  Whence do we know that no offering should be sacrificed prior to the continual offering of the morning?²⁹  Because it is stated, And lay the burnt offering in order upon it³⁰  and Raba stated: 'The burnt offering'³⁰  means the first burnt offering?³¹  — He, however, said to him: I derive it³²  from the clause:²⁹  'Whereby an atonement shall be made for him' which indicates³³  that the atonement has not yet been made.

WHERE HE PAID THE PRINCIPAL BUT DID NOT PAY THE FIFTH, THE [NON-PAYMENT OF THE] FIFTH IS NO BAR.

Our Rabbis taught: Whence could it be derived that if he brought the Principal due for sacrilege,³⁴  but had not yet brought the trespass offering,³⁵  or if he brought the trespass offering but had not yet brought the Principal due for sacrilege, he did not thereby fulfil his duty? Because it says: With the ram of the trespass offering and it shall be forgiven him.³⁶  Again, whence could it be derived that if be brought his trespass offering before he brought the Principal due for the sacrilege he did not thereby fulfil his duty? Because it says, 'With the ram of the trespass,' implying that the trespass [itself]³⁷  has already been made good. It might be thought that just as the ram and the trespass are indispensable, so should the Fifth be indispensable? It is therefore stated: 'With the ram of the trespass offering and it shall he forgiven him,' implying that it was only the ram and the trespass which are indispensable in [the atonement for the sacrilege of] consecrated things, whereas the Fifth is not indispensable. Now, the law regarding consecrated things³⁸  could be derived from that regarding private belongings³⁹  and that of private belongings could be derived from the law regarding consecrated things. The law regarding consecrated things could be derived from that regarding private belongings: just as 'trespass' there³⁹  denotes the Principal⁴⁰  so does 'trespass' here³⁸  denote the Principal. The law regarding private belongings could be derived from that regarding consecrated things; just as in the case of consecrated things the Fifth is not indispensable, so in the case of private things the Fifth is similarly not indispensable.

1. Regarding the state of the husband's brother,
2. Keth. 75a.
3. [H] two bodies, (Rashi); last. 'with a load of grief'.
4. So that irrespective of any undesirable consequences whatsoever it was an advantage to her to become betrothed to 'the person she hath chosen to dwell together'; cf. Rashi a.l.
5. I.e. to Jehoiarib.
6. To Jedaiah.
7. V. p. 642, n. 7.
8. At least so far as the division of Jedaiah accepting the money is concerned; why then did R. Judah order the payment to be taken away from Jedaiah and handed over to Jehoiarib?
9. That Jedaiah accepted the money.
10. V. p. 642, n. 8.
11. Before the money was paid, in which case the trespass offering becomes disqualified.
12. To whom the money was paid and not by Jehoiarib who accepted the previous trespass offering.
13. I.e., of the Jehoiarib division.
14. I.e., to the disqualified trespass offering.
15. V. p. 646, n. 16.
16. V. p. 648, n. 6.
17. V. p. 648, n. 5.
18. For the money accepted by Jedaiah.
19. To Jehoiarib.
20. Regarding the money and the trespass offering.
21. And the money should thus remain with Jedaiah.
22. Even from Jedaiah (during his time of service) for the trespass offering accepted by Jehoiarib.
23. I.e., the money will be handed over to Jehoiarib who will sacrifice the trespass offering when their time of service will come round again.
24. Num. V, 8.
25. Probably in the term 'beside'.
26. Num. XXVIII, 23.
27. In the term 'beside'.
28. Pes. 58b.
29. Cf. Num. XXVIII, 2-4.
30. Lev. VI, 5.
31. Cf. Hor, 12a.
32. Not from the term 'beside'.
33. By having the verb in the future tense.
34. Cf. Lev. V, 16.
35. In accordance with ibid. 15.
36. Ibid. 16,
37. I.e., the payment of the Principal as supra p. 642.
38. Lev. V, 15-16.
39. Num. V, 6-8.
40. V. p. 650, n. 14.

CHAPTER X

GEMARA. R. Hisda said: If one misappropriated [an article] and before the owner gave up hope of recovering it, another person came and consumed it, the owner has the option of collecting payment from either the one¹  or the other,²  the reason being that so long as the owner did not give up hope of recovery, the misappropriated article is still in the ownership of the original possessor.³  But we have learnt: IF ONE MISAPPROPRIATED [FOODSTUFF] AND FED HIS CHILDREN¹  [WITH IT], OR LEFT [IT] TO THEM [AS AN INHERITANCE], THEY WOULD NOT BE LIABLE TO MAKE RESTITUTION. Now, is this not a contradiction to the view of R. Hisda? — R. Hisda might say to you that this holds good only after the owner has given up hope.⁴

[IF HE] LEFT [IT] TO THEM [AS AN INHERITANCE], THEY WOULD NOT BE LIABLE TO MAKE RESTITUTION. Rami b. Hama said: This [ruling] proves that the possession of an heir is on the same footing in law as the possession of a purchaser;⁵  Raba, however, said the possession of an heir is not on a par with the possession of a purchaser,⁶  for here we are dealing with a case where the food was consumed [after the father's death].⁷  But since it is stated in the concluding clause, BUT IF THERE WAS ANYTHING [LEFT] WHICH COULD SERVE AS SECURITY⁸  THEY WOULD BE LIABLE TO PAY⁹  does it not imply that even in the earlier clause¹⁰  we are dealing with a case where the misappropriated article was still in existence?¹¹  Raba could however say to you that what is meant is this: If their father left them property constituting [legal] security¹²  they would be liable to pay.¹³  But did Rabbi not teach¹⁴  his son R. Simeon that 'ANYTHING WHICH COULD SERVE AS SECURITY should not [be taken literally to] mean actual security, for even if he left a cow to plough with or an ass to be driven,¹⁵  they would be liable to restore it, to save their father's good name? — Raba therefore said: When I pass away R. Oshaia will come out to meet me,¹⁶  since I am explaining the Mishnaic text in accordance with his teaching, for R. Oshaia taught: Where he misappropriated [foodstuff] and fed his children, they would not have to make restitution. If he left it to them [as an inheritance] so long as the misappropriated article is in existence they will be liable, but as soon as the misappropriated article is no more intact they will be exempt. But if their father left them property constituting [legal] security they would be liable to pay.

The Master stated: 'As soon as the misappropriated article is no more intact they would be exempt.' Should we not say that this is a contradiction to the view of R. Hisda?¹⁷  — R. Hisda could say to you that the ruling [here] applies subsequent to Renunciation.¹⁸

The Master said: 'So long as the misappropriated article is in existence they will be liable to pay.' Should we not say that this is a contradiction to the view of Rami b. Hama?¹⁹  — But Rami b. Hama could say to you that this teaching

1. I.e., the one who robbed him.
2. I.e., the one who later on consumed the article.
3. V. J. Ter. VII, 3.
4. I.e., the foodstuff was consumed after the proprietor had resigned himself to the loss of it completely.
5. Maintaining that if after renunciation the robber died, the misappropriated article could rightly remain with the heirs, just as with purchasers under similar circumstances; cf. supra p. 393, n. 5; v. also B.B. 44a.
6. The article could therefore not rightly remain with the heirs though it would have remained with a purchaser.
7. But if still intact it would go back to the proprietor.
8. Now assumed to denote garments and similar conspicuous articles, as would be the case with real property.
9. For the sake of honouring their father.
10. Which states the law in the case of inconspicuous articles such as food and the like.
11. And the heirs seem nevertheless to have the right to retain it.
12. I.e., realty.
13. For the father's realty became legally mortgaged for the liability arising out of the robbery he committed.
14. Infra 113a.
15. But in the case of inconspicuous things such as food and the like, the heirs would be entitled to retain them.
16. V. B.M. 62b.
17. According to whom the person who consumed the misappropriated article could also be called upon to pay.
18. I.e., the foodstuff was consumed after the proprietor had resigned himself to the loss of it completely.
19. Maintaining that if after Renunciation the robber died, the misappropriated article could rightly remain with the heirs, just as with purchasers under similar circumstances; cf. supra p. 652; v. also B.B. 44a.