Babylonian Talmud: Tractate Baba Kamma

Folio 70a

would have been right in not concurring with an anonymous statement of a single Tanna.

The Nehardeans said: We do not execute an assignment on movables¹  [which are outside the possession of the parties].²  Said R. Ashi to Amemar: On what ground? He replied: Because of the view of R. Johanan. For R. Johanan said: If a robber has misappropriated an article and the owner has not abandoned hope of recovering it, neither of them is able to consecrate it; the one because it is not his, the other because it is not in his possession. Some read that the Nehardeans said: We do not execute an assignment on movables [the claim upon which] was denied [by a bailee]. The reason is that the claim was denied, as the deed of assignment would then appear a lie,³  whereas where it is not denied, we would be able to execute. The Nehardeans further said: An assignment which does not contain the words, 'Go forth and take legal action so that you may acquire title to it and secure the claim for yourself' is of no validity, the reason being that the defendant might say to him:⁴  'You have no claim against me'. But Abaye said: If it is written, 'You will be entitled to a half or a third or a fourth of the claim', it would be valid, for since he is entitled to litigate regarding the half, he is also entitled to litigate regarding the whole.⁵  Amemar said: [In any case] where the assignee became possessed of articles belonging to the defendant, we would not take them away from him.⁶  But R. Ashi said: Since it was written for him,⁷  'Whatever will be imposed by the Court of Law I accept upon myself', he was surely appointed but an agent.⁸  Some, however, say that he is made a partner. What is the practical difference?⁹  Whether he may remain possessed of a half. The law is that he is appointed only an agent.¹⁰

MISHNAH. IF A THIEF IS CONVICTED OF THE THEFT [OF A SHEEP OR AN OX] ON THE EVIDENCE OF TWO WITNESSES,¹¹  AND OF THE SLAUGHTER OR SALE [OF IT] BY THE SAME TWO, OR ON THE EVIDENCE OF ANOTHER TWO WITNESSES, HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT.¹²  IF HE STEALS AND SELLS ON THE SABBATH DAY,¹³  OR IF HE STEALS AND SELLS FOR IDOLATROUS PURPOSES, OR IF HE STEALS AND SLAUGHTERS ON THE DAY OF ATONEMENT,¹⁴  OR IF HE STEALS FROM HIS OWN FATHER, AND AFTER HE HAD SLAUGHTERED OR SOLD, HIS FATHER DIED,¹⁵  OR AGAIN, WHERE HE STEALS AND SLAUGHTERS AND THEN CONSECRATES IT, HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT.¹⁶  IF HE STEALS AND SLAUGHTERS TO USE THE MEAT FOR CURATIVE PURPOSES OR TO GIVE TO DOGS, OR IF HE SLAUGHTERS AND FINDS THE ANIMAL TREFA,¹⁷  OR IF HE SLAUGHTERS IT AS UNCONSECRATED IN THE 'AZARAH,¹⁸  HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT.¹⁹  R. SIMEON, HOWEVER, RULES THAT THERE IS EXEMPTION IN THESE [LAST] TWO CASES.²⁰

GEMARA. Are we to say that the Mishnah is not in accordance with R. Akiba? For how could it be in accordance with R. Akiba who said that [the Scriptural term] 'Matter'²¹  implies 'not half a matter'? As indeed taught:²²  R. Jose said: 'When [my] father Halafta went to R. Johanan b. Nuri to learn Torah, or as others, when R. Johanan b. Nuri went to [my] father

1. Shebu. 33b and Bek. 49a.
2. But if they are in the possession of a bailee they could be assigned as they are considered in the possession of the depositor (Tosaf.).
3. Since the bailee denies them.
4. The assignee.
5. V. B.M. 8a.
6. For the benefit of the defendant even where the prescribed clause 'to go forth and secure for himself' etc. was not inserted in the instrument of assignment. According, however, to Gaonic interpretation it means that the assignee may retain the articles against the assignor (v. Rashi).
7. By the assignor.
8. And could therefore not retain the articles either against the defendant in the circumstances dealt with in the first interpretation, or against the assignor in accordance with the Gaonic interpretation.
9. Whether he was made a partner or an agent.
10. [Asheri and Alfasi omit, 'The law is, etc.']
11. Cf. Deut. XIX, 15.
12. Respectively.
13. For though it is prohibited to do any business transactions on the Sabbath day, no capital charge is thereby involved, and civil liability could thus be established; cf. Gemara.
14. As for desecrating the Day of Atonement in contradistinction to the Sabbath no capital charge is involved, the sole punishment at the hand of man being thirty-nine lashes.
15. And the thief became an heir to the estate.
16. For the slaughter which preceded the consecration.
17. I.e., ritually unfit to be eaten owing to an organic defect in the animal; v. Glos.
18. I.e., the precincts of the Temple where only sacrificial animals might be slaughtered.
19. As the ritual unfitness of the animal in the last two cases is not due to a defect in the act of slaughter but arises through other circumstances.
20. For he is of the opinion that if the slaughter does for any reason whatsoever not effect the ritual fitness of the animal to be eaten, it is not considered in the eye of the law as a slaughter.
21. A matter shall be established by two witnesses, Deut. XIX, 15.
22. V. B.B. 56a.

Halafta, he said to him: Suppose a man had the use of a piece of land for one year as testified by two witnesses, for a second year as testified by two other witnesses, and for a third year as testified by still two other witnesses, what is the position? — He replied: 'This is a proper usucaption'.¹  Whereupon the other rejoined: 'I also say the same, but R. Akiba joins issue on the matter for R. Akiba used to say: [Scripture states] A matter [implying] "but not half a matter"'!²  — Abaye, however, said: You may even say that this is in accordance with R. Akiba. For would R. Akiba not agree in a case where two witnesses state that a certain person had betrothed a woman³  and two other witnesses testify that another person had subsequently had intercourse with her,⁴  that though the evidence regarding the intercourse presupposes the evidence regarding the betrothal [in order to become relevant], nevertheless, since the evidence of betrothal does not presuppose the evidence of intercourse, each testimony should be considered a matter [complete in itself]? So also here, though the evidence regarding the slaughter presupposes the evidence regarding the theft [if it is to be relevant] nevertheless since the evidence regarding the theft does not presuppose the evidence regarding the slaughter, each testimony should be considered a matter [complete in itself].⁵  But according to the Rabbis⁶  what will this term 'matter' [implying] 'but not half a matter' exclude? — It will exclude a case where one witness testified that there was one hair on her back⁷  and the other states that there was one hair in front. But [since each hair is testified to by one witness],⁸  would this not be both half a matter and half a testimony?⁹  — [We must say] therefore that it excludes a case where two witnesses testify that there was one hair on her back and two other witnesses state that there was one hair in front, as in this case the one set testify that she was still a minor¹⁰  and the others similarly testify that she was still a minor.

IF HE STEALS AND SELLS ON THE SABBATH DAY … [HE HAS TO MAKE FOUR-FOLD OR FIVE-FOLD PAYMENT]. But has it not been taught [elsewhere] that he would be exempt? — Said Rami b. Hama: If it was taught there that he would be exempt, it was only where the purchaser said to him:¹¹  'pluck figs off my fig-tree¹²  and transfer to me [in consideration of them] the objects you have stolen.'¹³  It may however, be argued that seeing that if the purchaser claimed from him before us in the court¹⁴  we would be unable to order him to go and to pay since [at the time of the alleged liability,] he became subject to a capital charge, why should not even the sale itself be declared no sale at all?¹⁵  — R. Papa therefore said: There would be exemption [where the purchaser said to him], 'Throw your stolen objects [from a public thoroughfare] into my private courtyard,¹⁶  and transfer to me [thereby]¹⁷  the objects you have stolen.'¹⁸  Whom does this follow? R. Akiba,¹⁹  who said that an object intercepted in the air is on the same footing [regarding the law of Sabbath] as if it had already come to rest.²⁰  For if we were to follow the other Rabbis,²¹  while the possession of the stolen objects would be transferred as soon as they reached the air of the court-yard of the purchaser's house,²²  in regard to Sabbath the capital liability would not be incurred until they have reached the actual ground!¹⁹  — Raba thereupon said: It may still be in accordance with Rami b. Hama.²³  For the hire [of a harlot] was prohibited by the Torah²⁴  [from being used for the Temple] even [when given by a son] for having incestuous intercourse with his mother, irrespective of the fact that were she to have claimed it from him before us in the court, we should not have been able to order him to go and give her the hire.²⁵  We see then that although were she to have claimed it from him by law, we should have been unable to order him to go and pay her,²⁵  nevertheless when he of his own accord pays her [the hire] it will be subject to the law of the hire [of a harlot].²⁴  So also here regarding payment [for the figs plucked by the thief on the Sabbath], if the purchaser had claimed it by law in our presence, we should have been unable to order the thief to go and pay;²⁵

1. [In accordance with B.B. III, 1, that three years of undisturbed possession are required to establish a presumptive title on the part of a possessor.]
2. [And here no two witnesses testify to more than one year of occupation, which is only a third of the matter in hand. And in our Mishnah the second set of witnesses testify to no more than half a matter, i.e. the slaughter, and according to R. Akiba, should not be able to convict the thief.]
3. By a valid act of Kiddushin (v. Glos.), thus making her his wife.
4. Lev. XX, 10.
5. In which case even R. Akiba will allow such evidence to be given independently by separate sets.
6. Who even in the case of undisturbed possession admit evidence given independently by three sets of witnesses testifying to each of the three years respectively.
7. The reference is to the two hairs which are the sign of puberty in a girl. V. Nid. 52a.
8. Whose evidence in such a case is of no effect whatsoever; cf. Deut. XIX, 15.
9. And it is quite obvious that evidence of this kind is of no avail.
10. As the appearance of one hair is no sign of puberty; but where different witnesses testify to different years, each year is considered a 'whole matter'.
11. To the thief who sold him the animal.
12. Which is a capital offence if done on the Sabbath; v. Shab. VII, 2.
13. It thus follows that at the very moment when the sale was completed the thief was desecrating the Sabbath by an act which renders him liable to a capital charge in which all possible civil liabilities to take effect at that time have to merge.
14. To give some consideration for the fig.
15. For since the thief would have by law to pay nothing for the consideration given him on the part of the purchaser, there should in the eye of the law be lacking any consideration at all rendering the purchase null and void.
16. And it is a capital offence to throw anything on Sabbath from a public thoroughfare to private premises; cf. Shab. XI, 1.
17. I.e., by the animal entering into the premises of the prospective purchaser in accordance with B.M. 11a and supra p. 283.
18. V. p. 405, n. 7.
19. Shab. 4b; 97a and Git. 79a.
20. So that the capital offence was committed at the very moment the transaction of sale became complete by the animal entering the air of the purchaser's court-yard; cf. B.M. 12a and Git. 79a.
21. Who maintain that the capital offence of desecrating the Sabbath by throwing anything from a public thoroughfare into private premises will be committed only at the moment when the object thrown falls upon the ground.
22. B.M. 12a and Git. 79a.
23. That the purchaser said to the thief, 'Pluck off a fig of my fig-tree' etc., despite your objection as to the lack of consideration.
24. Deut. XXIII, 19.
25. As the very act that should cause pecuniary liability is a capital offence in which all possible civil liabilities have to merge.