Bava Kamma 105b

נִשְׁבַּע עָלָיו, מַהוּ? מִי אָמְרִינַן: כֵּיוָן דְּאִי מִיגְּנֵב בָּעֵי שַׁלּוֹמֵי לֵיהּ – מָמוֹנָא קָא כָפַר לֵיהּ; אוֹ דִלְמָא, הַשְׁתָּא מִיהַת הָא מַנַּח וְעַפְרָא בְּעָלְמָא הוּא, וְלָא כָּפַר לֵיהּ מָמוֹנָא?

If the robber took a false oath concerning the robbery of the leavened bread, what is the halakha ? Do we say that since, if it were to be stolen from the robber, the robber would need to pay the initial value of the bread to the robbery victim, as he can no longer say: That which is yours is before you, and therefore he has denied a claim of a monetary matter to the robbery victim and must consequently pay the additional one-fifth payment and bring a guilt-offering? Or perhaps we say that now, in any event, it is resting in the robber’s possession and it is considered as mere dust, since it is prohibited to derive benefit from it, and as such he has not denied a claim of a monetary matter, and the halakhot concerning a false oath do not apply.

מִילְּתָא דְּאִיבַּעְיָא לֵיהּ לְרָבָא, פְּשִׁיטָא לֵיהּ לְרַבָּה – דְּאָמַר רַבָּה: ״שׁוֹרִי גָּנַבְתָּ״, וְהוּא אוֹמֵר: ״לֹא גָּנַבְתִּי״;

The Gemara comments: The matter that was a dilemma for Rava is obvious to Rabba, as Rabba says that in a scenario where one says to another: You stole my ox, and the other says: I did not steal it.

״מָה טִיבוֹ אֶצְלְךָ?״ ״שׁוֹמֵר חִנָּם אֲנִי עָלָיו״ – חַיָּיב, שֶׁהֲרֵי פָּטַר עַצְמוֹ מִגְּנֵיבָה וַאֲבֵידָה.

The first asks: What is the nature of its presence in your possession? The second responds: I am an unpaid bailee over it. If the defendant then takes a false oath to that effect, after which he confesses that he stole the ox, he is liable to bring a guilt-offering for denying a claim of a monetary matter, as he exempted himself from liability in cases of theft and loss.

״שׁוֹמֵר שָׂכָר אֲנִי עָלָיו״ – חַיָּיב, שֶׁהֲרֵי פָּטַר עַצְמוֹ מִשְּׁבוּרָה וּמֵתָה.

If he responds instead: I am a paid bailee over it, and takes a false oath to that effect, after which he confesses that he stole the ox, he is liable to bring a guilt-offering for denying a claim of a monetary matter, as he exempted himself from liability in cases of breakage and death.

״שׁוֹאֵל אֲנִי עָלָיו״ – חַיָּיב, שֶׁהֲרֵי פָּטַר עַצְמוֹ מִמֵּתָה מֵחֲמַת מְלָאכָה.

If he responds instead: I am a borrower of it, and takes a false oath to that effect, after which he confesses that he stole the ox, he is liable to bring a guilt-offering for denying a claim of a monetary matter, as he exempted himself from liability in cases where the ox died due to ordinary labor.

אַלְמָא אַף עַל גַּב דְּהָא קָאֵים – כֵּיוָן דְּאִי מִיגְּנֵיב מָמוֹנָא קָא כָפַר, הַשְׁתָּא נָמֵי מָמוֹנָא קָא כָפַר; הָכָא נָמֵי, אַף עַל גַּב דְּעַפְרָא בְּעָלְמָא הוּא – כֵּיוָן דְּאִי מִיגְּנִיב בָּעֵי שַׁלּוֹמֵי לֵיהּ מָמוֹנָא מְעַלְּיָא, הַשְׁתָּא נָמֵי מָמוֹנָא קָא כָפַר לֵיהּ.

In all of these cases, the ox is in the possession of the one who took the false oath, and he admits that it belongs to the other. The Gemara analyzes Rabba’s statement: Apparently, Rabba holds that even though the ox is now extant and can be returned to its owner, since, if it were to be stolen, the robber would be found to be denying a claim of a monetary matter, as according to his claim he would then be exempt from paying, he is now considered to be denying a claim of a monetary matter as well. Here, in the case of the bread also, even though it is considered mere dust, since, if it were to be stolen, he would be required to pay the robbery victim full-fledged monetary restitution, he is now considered to be denying a claim of a monetary matter as well.

יָתֵיב רָבָא וְקָאָמַר לְהָא שְׁמַעְתָּא. אֵיתִיבֵיהּ רַב עַמְרָם לְרָבָא: ״וְכִחֵשׁ בָּהּ״ – פְּרָט לְמוֹדֶה בָּעִיקָּר.

Rava sat and said this halakha , that one who protected himself from potential liability for payment by taking a false oath that he is a bailee is liable to pay the additional one-fifth payment and bring a guilt-offering. Rav Amram raised an objection to Rava from a baraita : The verse states concerning one who is liable for taking a false oath concerning a monetary matter: “And deals falsely with it” (Leviticus 5:22); this serves to exclude one who admits to the primary feature of a claim.

כֵּיצַד? ״שׁוֹרִי גָּנַבְתָּ״, וְהוּא אוֹמֵר: ״לֹא גָּנַבְתִּי״;

The baraita continues: How is this so? In a scenario where one says to another: You stole my ox, and the latter says: I did not steal it.

״מָה טִיבוֹ אֶצְלְךָ?״ ״אַתָּה מְכַרְתּוֹ לִי״; ״אַתָּה נְתַתּוֹ לִי בְּמַתָּנָה״; ״אָבִיךָ מְכָרוֹ לִי״; ״אָבִיךָ נְתָנוֹ לִי בְּמַתָּנָה״; ״אַחַר פָּרָתִי רָץ״; ״מֵאֵלָיו בָּא אֶצְלִי״; ״תּוֹעֶה בַּדֶּרֶךְ מְצָאתִיו״; ״שׁוֹמֵר חִנָּם אֲנִי עָלָיו״; ״שׁוֹמֵר שָׂכָר אֲנִי עָלָיו״; ״שׁוֹאֵל אֲנִי עָלָיו״ – וְנִשְׁבַּע וְהוֹדָה; יָכוֹל יְהֵא חַיָּיב? תַּלְמוּד לוֹמַר: ״וְכִחֵשׁ בָּהּ״ – פְּרָט לְמוֹדֶה בָּעִיקָּר.

The first asks: What is the nature of its presence in your possession? The second responds with any of the following replies: 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; it chased after my cow and entered my domain; it came to me on its own; I found it straying on the road and I brought it home; I am an unpaid bailee over it; I am a paid bailee over it; or I am a borrower of it; and the second takes a false oath to that effect, and then admits that he had done so; one might have thought that he should be liable. The verse states: “And deals falsely with it,” which serves to exclude one who admits to the primary feature of a claim. The baraita states explicitly that one who takes a false oath that he is a bailee is not liable; how can Rava state otherwise?

אֲמַר לֵיהּ: תְּדוֹרָא! כִּי תַּנְיָא הָהִיא – דְּקָאָמַר לֵיהּ: ״הֵילָךְ״, כִּי קָאָמֵינָא – דְּקָיְימָא בַּאֲגַם.

Rava said to him: Fool, when that baraita is taught, it is referring to a case where the robber said to the owner: Here you are, and presented the ox to him immediately, so that he did not profit by claiming that he was a bailee. When I spoke, I was referring to a case where the ox was standing in a different place, such as a swamp, and was not returned to the owner.

״אַתָּה מְכַרְתּוֹ לִי״ – מַאי מוֹדֶה בָּעִיקָּר אִיכָּא? לָא צְרִיכָא, דְּאָמַר לֵיהּ: ״לֹא נָתַתִּי לְךָ דְּמֵי, שְׁקֹיל תּוֹרָךְ וְזִיל״.

Several examples of an oath in which the robber admits to the primary feature of a claim were cited in the baraita above. The Gemara analyzes some of these examples. When the robber says: You sold the ox to me, he has asserted that it belongs to him, so what admission to the primary feature of the claim is there? The Gemara explains: No, it is necessary to teach this in a case where he said to him: You sold the animal to me, but I did not give you the money, take your ox and go.

״אַתָּה נְתַתּוֹ לִי״; ״אָבִיךָ נְתָנוֹ לִי״ – מַאי מוֹדֶה בָּעִיקָּר אִיכָּא? דְּאָמַר לֵיהּ: ״עַל מְנָת דְּעָבֵידְנָא לָךְ נְיָיח דְּנַפְשָׁא, וְלָא עֲבַדִי לָךְ, שְׁקֹיל תּוֹרָךְ וְזִיל״.

When the robber says: You gave it to me, or: Your father gave it to me, he has asserted that it belongs to him, so what admission to the primary feature of the claim is there? The Gemara explains: It is a case where he said to him: It was given to me on the condition that I will afford you satisfaction, and I did not do anything for you; take your ox and go.

״תּוֹעֶה בַּדֶּרֶךְ מְצָאתִיו״ – לֵימָא: אִיבְּעִי לָךְ לְאַהֲדוֹרֵיהּ לִי! אָמַר אֲבוּהּ דִּשְׁמוּאֵל, בְּאוֹמֵר: ״שְׁבוּעָה – אֲבֵידָה מָצָאתִי, וְלֹא הָיִיתִי יוֹדֵעַ שֶׁהִיא שֶׁלְּךָ שֶׁאַחְזִירֶנָּה לָךְ״.

When the robber says: I found it straying on the road and I brought it home, let the owner say to him: You should have returned it to me. Shmuel’s father said: The baraita is referring to a case in which he says: I take an oath that I found the ox as a lost item, and I did not know that it was yours so that I could return it to you.

תַּנְיָא, אָמַר בֶּן עַזַּאי: שָׁלֹשׁ שְׁבוּעוֹת הֵן – הִכִּיר בָּהּ וְלֹא בְּמוֹצְאָהּ, בְּמוֹצְאָהּ וְלֹא בָּהּ, לֹא בָּהּ וְלֹא בְּמוֹצְאָהּ.

§ After discussing a false oath taken by a robber in which he admits to the primary feature of a claim, the Gemara discusses a false oath taken by witnesses. It is taught in a baraita : When a witness takes an oath that he has no knowledge of the status of a lost item, ben Azzai says that there are three possible false oaths, i.e., the oath may be false for one of three reasons: The witness may have recognized the lost item but did not recognize its finder, or he may have recognized its finder but did not recognize the item, or he may have recognized neither the item nor its finder. In each of these cases, the witness took a false oath that he had no knowledge of the lost item, when in fact he had limited knowledge of it.

לֹא בָּהּ וְלֹא בְּמוֹצְאָהּ?! קוּשְׁטָא אִשְׁתְּבַע! אֵימָא: בָּהּ וּבְמוֹצְאָהּ.

The Gemara asks: In the third case cited above, where the witnesses recognized neither the item nor its finder, he took his oath in truth when he claimed that he did not have knowledge of the lost item. Why is this cited as an example of a false oath? The Gemara emends the baraita : Say that the reference here is to a case where he recognized both the item and its finder.

לְמַאי הִלְכְתָא? רַב אַמֵּי אָמַר רַבִּי חֲנִינָא: לִפְטוּר, וּשְׁמוּאֵל אָמַר: לְחִיּוּב.

The Gemara asks: For which halakha did ben Azzai cite these examples? Rav Ami says that Rabbi Ḥanina says: They were cited to teach that there is exemption in these cases from bringing an offering for taking a false oath of testimony. And Shmuel says that these examples were cited to teach that the witness incurs liability to bring an offering in these cases.

וּבִפְלוּגְתָּא דְּהָנֵי תַּנָּאֵי, דְּתַנְיָא: הַמַּשְׁבִּיעַ עֵד אֶחָד – פָּטוּר, וְרַבִּי אֶלְעָזָר בְּרַבִּי שִׁמְעוֹן מְחַיֵּיב.

The Gemara comments: And Rav Ami and Shmuel disagree with regard to the issue that is the subject of the dispute between these tanna’im , as it is taught in a baraita : With regard to one who administers an oath to a single witness and the witness takes a false oath that he has no awareness of the monetary matter at hand, the witness is exempt from bringing a sin-offering; and Rabbi Elazar, son of Rabbi Shimon, deems the witness liable to bring a sin-offering.

בְּמַאי קָא מִיפַּלְגִי? מָר סָבַר: דָּבָר הַגּוֹרֵם לְמָמוֹן – כְּמָמוֹן דָּמֵי, וּמָר סָבַר: לָאו כְּמָמוֹן דָּמֵי.

The Gemara asks: With regard to what do they disagree? One Sage, Rabbi Elazar, son of Rabbi Shimon, holds that an item that causes financial loss is considered to have monetary value. Similarly, the potential monetary benefit that the witness can generate by causing the defendant to admit to the debt and pay the owner is considered to have monetary value. Therefore, the witness is considered to have taken a false oath with regard to a monetary matter. And one Sage, the first tanna , holds that an item that causes financial loss is not considered to have monetary value. Similarly, the potential monetary benefit that the witness can generate by causing the defendant to admit to the debt and pay the owner is not considered to have monetary value. Therefore, the witness is not considered to have taken a false oath with regard to a monetary matter.

אָמַר רַב שֵׁשֶׁת: הַכּוֹפֵר בְּפִקָּדוֹן – נַעֲשֶׂה עָלָיו גַּזְלָן, וְחַיָּיב בָּאוֹנָסִין. וְתַנָּא תּוּנָא: ״וְכִחֵשׁ בָּהּ״ – לָמַדְנוּ עוֹנֶשׁ. אַזְהָרָה מִנַּיִן? תַּלְמוּד לוֹמַר: ״לֹא תְכַחֲשׁוּ״. מַאי, לָאו לְעוֹנֶשׁ מָמוֹן?

§ The Gemara discusses the halakha concerning a bailee who denies having a deposit in his possession. Rav Sheshet says: A bailee who falsely denies a claim concerning a deposit becomes as a robber with regard to it, and he is therefore liable to pay even for damage that is the result of accidents. The Gemara notes that the tanna also taught this halakha in a baraita . The verse states: “And deals falsely with it” (Leviticus 5:22–24), and we learned from this verse the punishment for one who denies having a deposit. From where is the prohibition itself derived? The verse states: “Neither shall you deal falsely” (Leviticus 19:11). The Gemara explains: What, is the baraita not referring to the punishment of having to pay money due to his denial even for accidental damage, in accordance with the statement of Rav Sheshet?

לָא, לְעוֹנֶשׁ שְׁבוּעָה. הָא מִדְּקָתָנֵי סֵיפָא וְאִישְׁתְּבַע, מִכְּלָל דְּרֵישָׁא דְּלָא אִישְׁתְּבַע – דְּקָתָנֵי סֵיפָא: ״וְנִשְׁבַּע עַל שָׁקֶר״ – לָמַדְנוּ עוֹנֶשׁ. אַזְהָרָה מִנַּיִן? תַּלְמוּד לוֹמַר: ״לֹא תְשַׁקְּרוּ״. וּמִדְּסֵיפָא דְּאִישְׁתְּבַע, רֵישָׁא דְּלָא אִישְׁתְּבַע!

The Gemara rejects this: No, the baraita is referring to the punishment for taking a false oath, i.e., the additional one-fifth payment and the bringing of the offering. The Gemara challenges: From the fact that the latter clause of the baraita teaches a case where he took an oath, it may be inferred that the first clause teaches a case where he did not take an oath, and the punishment referred to by the baraita is the imposition of liability for accidental damage. As the latter clause teaches that the verse states: “And swear to a lie” (Leviticus 5:22), and we learned from this that there is a punishment for taking a false oath. From where is the prohibition itself derived? The verse states: “Nor lie” (Leviticus 19:11). And from the fact that the latter clause teaches the halakha where he took an oath, the first clause must be teaching the halakha in a case where he did not take an oath.

אָמְרִי: אִידֵּי וְאִידֵּי דְּאִישְׁתְּבַע; כָּאן שֶׁהוֹדָה, כָּאן שֶׁבָּאוּ עֵדִים. אֲתוֹ עֵדִים – חַיָּיב בְּאוּנְסִין. אוֹדוֹיֵי אוֹדִי – חַיָּיב בְּקֶרֶן וְחוֹמֶשׁ וְאָשָׁם.

The Gemara answers: The Sages say in response that both this clause and that clause are referring to a case where he took an oath, but here, in the latter clause, it is where the bailee admitted his false oath, while there, in the first clause, it is where witnesses came and testified that the deposit is in his possession. Where witnesses came, he is liable only for damage that is a result of accidents, and where he admitted his false oath, he is obligated to pay for the principal and an additional one-fifth payment, and to bring a guilt-offering. Since the baraita is referring in both clauses to a case where the bailee took an oath, it offers no support for Rav Sheshet’s statement.

מֵתִיב רָמֵי בַּר חָמָא: וְשֶׁכְּנֶגְדּוֹ חָשׁוּד עַל הַשְּׁבוּעָה – כֵּיצַד? אֶחָד שְׁבוּעַת הָעֵדוּת, וְאֶחָד שְׁבוּעַת הַפִּקָּדוֹן, וַאֲפִילּוּ שְׁבוּעַת שָׁוְא.

After dismissing the attempted proof for Rav Sheshet’s statement that a bailee who denies possession of a deposit is considered a robber even without having taken a false oath, the Gemara now attempts to disprove the statement itself. Rami bar Ḥama raises an objection to Rav Sheshet’s statement: Though it is usually the defendant who is required to take an oath in order to avoid having to pay a claim, there are cases in which the plaintiff takes an oath to receive payment. The mishna in Shevuot (44b) lists these cases: And one such case is where the plaintiff’s opponent, i.e., the defendant, is suspect with regard to an oath, i.e., there is reason for the court to believe that he would take a false oath. How would the defendant have become suspect? It would be by having taken a false oath with regard to either an oath of testimony or an oath on a deposit, or even for an oath taken in vain.

וְאִם אִיתָא, בִּכְפִירָה הוּא דְּאִיפְּסִיל לֵיהּ!

The Gemara comments: Since the mishna states that he becomes suspect only as a result of having taken a false oath, it can be inferred that he does not become suspect by virtue of denial of a claim alone. And if it is so that a bailee who denies having taken the deposit is considered a robber even without having taken an oath, then it is with his denial that he ought to be disqualified, as a robber does not have the credibility to take an oath.

אָמְרִי: הָכָא בְּמַאי עָסְקִינַן – דְּקָאֵי בַּאֲגַם, דְּלָאו כְּפִירָה הוּא; דְּסָבַר: אִשְׁתְּמִיטְנָא לֵיהּ אַדְּאָזֵילְנָא וּמַיְיתֵינָא לֵיהּ.

The Sages say in defense of Rav Sheshet’s opinion: With what are we dealing here, in the case of the mishna in Shevuot ? We are dealing with a case where the deposit stands in a place not in the bailee’s possession, e.g., a swamp, as in this case his statement is not considered a complete denial, because he thinks to himself: I will evade the owner by claiming that I never took the deposit until I go and bring it to him. Therefore, he is not considered to be a robber. By contrast, Rav Sheshet is referring to a case where the bailee denied responsibility for the item while it was in his possession, as he intended to keep it for himself.

תִּדַּע, דְּאָמַר רַב אִידִי בַּר אָבִין: הַכּוֹפֵר בְּמִלְוָה – כָּשֵׁר לְעֵדוּת.

The Gemara adds: Know that one who denies possession of an item only so that he may later return it is not considered a robber, as Rav Idi bar Avin says: One who denies a claim concerning having taken a loan is fit to bear witness,