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Bava Kamma 106b

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Bava Kamma 106b

Bava Kamma 106b. The full printed text of this folio side — 21 numbered segments, about 486 words — with the classic commentaries printed on the page.

Original text

Segment 1

אִי אָמְרַתְּ בִּשְׁלָמָא נִשְׁבַּע – כִּי אֲתוֹ עֵדִים מִיחַיַּיב, אַמְּטוּ לְהָכִי מְחַיְּיבִינַן לֵיהּ קׇרְבָּן אַשְּׁבוּעָה בָּתְרָיְיתָא, הוֹאִיל וְיָכוֹל לַחֲזוֹר וּלְהוֹדוֹת;

Granted, if you say that when one takes a false oath and then witnesses come, he is liable to pay, that is why we hold him liable for a guilt- offering for the final oath, since he can still retract and admit his liability and incur an obligation to pay. Consequently, the fact that he took another false oath constitutes an additional false denial of his monetary liability.

Segment 2

אֶלָּא אִי אָמְרַתְּ כִּי אֲתוֹ עֵדִים פָּטוּר, מִי אִיכָּא מִידֵּי דְּאִילּוּ אָתוּ סָהֲדִי וּמַסְהֲדִי בֵּיהּ – פָּטוּר, וַאֲנַן נֵיקוּ נִיחַיְּיבֵיהּ קׇרְבָּן אַשְּׁבוּעָה הוֹאִיל וְיָכוֹל לַחֲזוֹר וּלְהוֹדוֹת?! הַשְׁתָּא מִיהַת לָא אוֹדִי!

But if you say, as Rav did, that even when witnesses come he is exempt from paying, then the mishna’s ruling is difficult, as is there any similar case where if witnesses come and testify with regard to it, he would be exempt, and yet we would stand and obligate him to bring a guilt- offering for a later oath, for no reason other than since he can still retract and admit his liability? As of now, in any event, he has not admitted to any liability and has no extant debt, and any further oaths that he takes are not denials of monetary liability. It follows, then, that Rava’s explanation of Rav’s opinion cannot be undermined by Rav Hamnuna’s challenge.

Segment 3

אָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: הַטּוֹעֵן טַעֲנַת גַּנָּב בְּפִקָּדוֹן – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל. טָבַח וּמָכַר – מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה.

§ The Gemara cites another ruling concerning the topic of a bailee who claims that a deposit in his possession was stolen. Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: One who falsely states the claim, with regard to a deposit, that a thief stole it, and it becomes clear that he stole it himself, pays double payment. If he slaughtered or sold it, he must pay fourfold or fivefold payment.

Segment 4

הוֹאִיל וְגַנָּב מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל, וְטוֹעֵן טַעֲנַת גַּנָּב מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל – מָה גַּנָּב, שֶׁהוּא מְשַׁלֵּם כֶּפֶל, טָבַח וּמָכַר מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה; אַף טוֹעֵן טַעֲנַת גַּנָּב בְּפִקָּדוֹן, כְּשֶׁהוּא מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל, טָבַח וּמָכַר מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה.

He explains his ruling by means of a comparison: Since a thief pays double payment, and one who falsely states the claim that a thief stole the deposit also pays double payment, it follows that just as a thief, who ordinarily pays double payment, and if he slaughtered or sold an animal he stole pays fourfold or fivefold payment, so too, one who falsely states the claim that a thief stole a deposit, who ordinarily pays double payment, if he slaughtered or sold the animal he received as a deposit pays fourfold or fivefold payment.

Segment 5

מָה לְגַנָּב – שֶׁכֵּן מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל שֶׁלֹּא בִּשְׁבוּעָה, תֹּאמַר בְּטוֹעֵן טַעֲנַת גַּנָּב – שֶׁאֵין מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל אֶלָּא בִּשְׁבוּעָה?!

The Gemara asks: What is notable about the halakha of a thief? It is notable in that he pays double payment even without having taken a false oath; will you say that this stringency should apply with regard to one who falsely states the claim that a thief stole the deposit, who pays double payment only upon taking a false oath? Therefore, one cannot derive from the obligation of a thief to pay fourfold or fivefold payment to the case of one who falsely states the claim that the deposit was stolen.

Segment 6

אָמְרִי: הֶיקֵּישָׁא הִיא, וְאֵין מְשִׁיבִין עַל הֶיקֵּישָׁא.

The Sages say in response: Rabbi Yoḥanan did not base his ruling on a logical inference; rather, it is a derivation based upon a juxtaposition, as the verses discussing a thief and one who falsely states the claim that a deposit was stolen are juxtaposed, and one cannot refute through analysis a derivation based upon juxtaposition.

Segment 7

הָנִיחָא לְמַאן דְּאָמַר חַד בְּגַנָּב וְחַד בְּטוֹעֵן טַעֲנַת גַּנָּב, שַׁפִּיר. אֶלָּא לְמַאן דְּאָמַר הַאי ״אִם יִמָּצֵא הַגַּנָּב״, וְ״אִם לֹא יִמָּצֵא״ – תַּרְוַיְיהוּ בְּטוֹעֵן טַעֲנַת גַּנָּב; מַאי אִיכָּא לְמֵימַר?

The Gemara asks: This works out well according to the one who says that one verse is stated with regard to a thief and one verse is stated with regard to one who falsely states the claim that a thief stole the deposit. According to him, there is a juxtaposition, and one can well derive one from the other. But according to the one who says that both this verse: “If the thief shall be found, he shall pay double” (Exodus 22:6), and: “If the thief shall not be found” (Exodus 22:7), are referring to one who falsely states the claim that a thief stole the deposit, and neither verse is referring to a thief, what is there to say?

Segment 8

אָמְרִי: ״גַּנָּב–הַגַּנָּב״.

The Sages say in response: Rabbi Yoḥanan’s ruling is derived from an amplification indicated by the verse not employing the term “thief [ gannav ],” and instead employing the expanded term “the thief [ hagannav ].” This teaches that the halakha of the fourfold and fivefold payment applies to one who falsely states the claim that the deposit was stolen, as well.

Segment 9

אֵיתִיבֵיהּ רַבִּי חִיָּיא בַּר אַבָּא לְרַבִּי יוֹחָנָן: ״הֵיכָן שׁוֹרִי?״ ״נִגְנַב״. ״מַשְׁבִּיעֲךָ אֲנִי״, וְאָמַר: ״אָמֵן״, וְהָעֵדִים מְעִידִים אוֹתוֹ שֶׁאֲכָלוֹ – מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל. וְהָא הָכָא, דְּאִי אֶפְשָׁר לִכְזַיִת בָּשָׂר בְּלֹא שְׁחִיטָה, וְקָתָנֵי: מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל; תַּשְׁלוּמֵי כֶפֶל – אִין, תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה – לָא!

Rabbi Ḥiyya bar Abba raised an objection to the statement of Rabbi Yoḥanan from a baraita : In a scenario where one said to an unpaid bailee: Where is my ox? Then the bailee responded: It was stolen. And the owner said: I administer an oath to you, and the bailee said: Amen. And the witnesses testify about the bailee that he ate it, he pays double payment. But here, the halakha is that it is impossible to eat even an olive-bulk of meat without slaughtering the animal first, indicating that it must have been slaughtered, and nevertheless it teaches that he pays double payment. It can be inferred that double payment, yes, he pays; but fourfold or fivefold payment, no, he does not pay.

Segment 10

הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן שֶׁאֲכָלוֹ נְבֵילָה.

Rabbi Yoḥanan answers: With what are we dealing here? We are dealing with a case where he ate it as an unslaughtered animal carcass. Since it was not killed according to the halakhot of ritual slaughter, the thief does not pay the fourfold or fivefold payment.

Segment 11

וְלִישַׁנֵּי לֵיהּ כְּגוֹן שֶׁאֲכָלוֹ טְרֵיפָה! כְּרַבִּי מֵאִיר, דְּאָמַר: שְׁחִיטָה שֶׁאֵינָהּ רְאוּיָה – שְׁמָהּ שְׁחִיטָה.

The Gemara asks: And let Rabbi Yoḥanan answer Rabbi Ḥiyya bar Abba by saying that it is a case such as where he ate it as an animal with a wound that will cause it to die within twelve months [ tereifa ], in accordance with Rabbi Shimon’s opinion that the legal status of an act of slaughter that is not fit for accomplishing its full ritual purpose is not considered an act of slaughter for which the thief must pay the fourfold or fivefold payment. The Gemara responds that Rabbi Yoḥanan holds in accordance with the opinion of Rabbi Meir, who says that the legal status of an act of slaughter that is not fit for accomplishing its full ritual purpose is considered an act of slaughter, and the thief would pay the fourfold or fivefold payment.

Segment 12

וְלִישַׁנֵּי לֵיהּ בְּבֶן פְּקוּעָה! כְּרַבִּי מֵאִיר, דְּאָמַר: בֶּן פְּקוּעָה טָעוּן שְׁחִיטָה.

The Gemara further asks: And let Rabbi Yoḥanan answer Rabbi Ḥiyya bar Abba by saying that the ruling of the baraita is stated with regard to an animal removed from its mother’s womb after the mother was ritually slaughtered [ ben pekua ], which is permitted for consumption without slaughter, so that there is a possibility that the thief ate it without first slaughtering it. The Gemara responds that Rabbi Yoḥanan holds in accordance with the opinion of Rabbi Meir, who says that a ben pekua requires slaughter.

Segment 13

וְלִישַׁנֵּי לֵיהּ כְּגוֹן שֶׁעָמַד בַּדִּין, וְאָמְרוּ לוֹ: ״צֵא תֵּן לוֹ״! דְּהָא אָמַר רָבָא: ״צֵא תֵּן לוֹ״, טָבַח וּמָכַר – פָּטוּר. מַאי טַעְמָא? כֵּיוָן דְּפַסְקֵיהּ לְמִילְּתֵיהּ, וְטָבַח וּמָכַר – הָוֵי גַּזְלָן, וְגַזְלָן לָא מְשַׁלֵּם תַּשְׁלוּמֵי אַרְבָּעָה וַחֲמִשָּׁה.

The Gemara further asks: And let Rabbi Yoḥanan answer Rabbi Ḥiyya bar Abba by saying that it is a case where the bailee stood in judgment in court, and the judges said to him: Go out and give him the stolen animal, and he did not do so, and subsequently slaughtered or sold it? In this case he would not pay the fourfold or fivefold payment, as doesn’t Rava say that if the judges instruct a thief: Go out and give him the stolen animal, and he instead slaughtered or sold it, he is exempt from paying the fourfold or fivefold payment. What is the reason for this? Once the court ruled on his matter, requiring him to give the animal to the owner, and he did not heed the court’s ruling but slaughtered or sold the animal, he is considered a robber, and not a thief; and a robber does not pay fourfold or fivefold payment.

Segment 14

״חַיָּיב אַתָּה לִיתֵּן לוֹ״, וְטָבַח וּמָכַר – חַיָּיב. מַאי טַעְמָא? כֹּל כַּמָּה דְּלָא פְּסִיקָא לֵיהּ מִילְּתָא, אַכַּתִּי גַּנָּב הוּא.

Rava continues: But if the judges say only: You are obligated to give the animal to him, and he did not heed the court’s statement but slaughtered or sold the animal, then he is obligated to pay the fourfold or fivefold payment. What is the reason for this? Since the court has not issued a definitive ruling in this matter, he is still considered a thief rather than a robber.

Segment 15

אָמְרִי: וְלִיטַעְמָיךְ, לִישַׁנֵּי לֵיהּ בְּשׁוּתָּף שֶׁטָּבַח שֶׁלֹּא מִדַּעַת חֲבֵירוֹ! אֶלָּא חֲדָא מִתְּרֵי וּתְלָתָא נָקֵט.

The Sages say in response: And according to your reasoning, let Rabbi Yoḥanan answer Rabbi Ḥiyya bar Abba by saying that the ruling of the baraita is stated with regard to a partner who slaughtered an animal stolen by him and his partner without the other partner’s knowledge, as the halakha is that in such a case, the thief, i.e., the partner who slaughtered the animal, does not pay fourfold or fivefold payment. Rather, Rabbi Yoḥanan selected one of two or three possible answers but did not mean to say that it was the only possible answer.

Segment 16

וְאָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: הַטּוֹעֵן טַעֲנַת גַּנָּב בַּאֲבֵידָה, מְשַׁלֵּם תַּשְׁלוּמֵי כֶפֶל. מַאי טַעְמָא? דִּכְתִיב: ״עַל כׇּל אֲבֵדָה אֲשֶׁר יֹאמַר״.

§ The Gemara cites a related ruling: And Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: With regard to one who falsely states the claim, with regard to a lost item, that a thief stole it, i.e., he found a lost item, and when the owner requested its return, he claimed that it had been stolen from him, and it became known that he lied and had taken the item himself, he pays double payment. What is the reason for this? As it is written in the verse concerning double payment for a thief: “For any matter of trespass, from an ox, for a donkey, for a sheep, for a garment, or for any lost item about which one shall say: This is it, the claims of both of them shall come before the judges; the one whom the judges convict shall pay double to his neighbor” (Exodus 22:8). It can be seen from here that double payment applies to a false claim of theft even with regard to a lost item.

Segment 17

אֵיתִיבֵיהּ רַבִּי אַבָּא בַּר מֶמֶל לְרַבִּי חִיָּיא בַּר אַבָּא: ״כִּי יִתֵּן אִישׁ״ – אֵין נְתִינַת קָטָן כְּלוּם. וְאֵין לִי אֶלָּא שֶׁנְּתָנוֹ כְּשֶׁהוּא קָטָן, וּתְבָעוֹ כְּשֶׁהוּא קָטָן; נְתָנוֹ כְּשֶׁהוּא קָטָן וּתְבָעוֹ כְּשֶׁהוּא גָּדוֹל – מִנַּיִן? תַּלְמוּד לוֹמַר: ״עַד הָאֱלֹהִים יָבֹא דְּבַר שְׁנֵיהֶם״ – עַד שֶׁתְּהֵא נְתִינָה וּתְבִיעָה שָׁוִין כְּאֶחָד.

Rabbi Abba bar Memel raised an objection to Rabbi Ḥiyya bar Abba from a baraita : The verse states: “If a man gives his neighbor money or vessels to safeguard, and it was stolen from the house of the man, if the thief shall be found, he shall pay double” (Exodus 22:6). The use of the word “man” indicates that the giving of a deposit by a minor is nothing. And I have derived only a case where he gives the deposit when he is a minor and lodges the claim concerning it against the bailee when he is still a minor. From where is it derived that the halakha would be the same in a case where he gives the deposit when he is a minor and lodges the claim concerning it against the bailee when he is an adult? The verse states: “The claims of both of them shall come before the judges” (Exodus 22:8), i.e., the claim is valid only when the giving of the deposit and the claim are equal, both done when he is an adult.

Segment 18

וְאִם אִיתָא, תֶּיהְוֵי נָמֵי כַּאֲבֵידָה! אֲמַר לֵיהּ: הָכָא בְּמַאי עָסְקִינַן – כְּגוֹן שֶׁאֲכָלוֹ כְּשֶׁהוּא קָטָן.

Based on the ruling of this baraita , Rabbi Abba bar Memel raises his objection: And if it is so that even one who finds a lost item pays double payment for claiming falsely that it was stolen, indicating that the giving of the item as a deposit by the owner is not an essential condition to render the thief liable for double payment, then the claim of a minor should be like a lost item as well, and one who received a deposit from a minor should be liable for double payment. Rabbi Ḥiyya bar Abba said to him: With what are we dealing here? We are dealing with a case where the bailee consumed the deposit when the owner was still a minor, so that at the time it was consumed, the owner had no legal standing. Therefore, the bailee is not obligated to pay.

Segment 19

אֲבָל כְּשֶׁהוּא גָּדוֹל מַאי, הָכִי נָמֵי דִּמְשַׁלֵּם? אִי הָכִי, אַדִּתְנָא: עַד שֶׁתְּהֵא נְתִינָה וּתְבִיעָה שָׁוִין כְּאֶחָד, לִיתְנֵי: עַד שֶׁתְּהֵא אֲכִילָה וּתְבִיעָה שָׁוִין כְּאֶחָד! אֲמַר לֵיהּ, תְּנִי: עַד שֶׁתְּהֵא אֲכִילָה וּתְבִיעָה שָׁוִין כְּאֶחָד.

Rabbi Abba bar Memel questions this answer: But had the bailee consumed it when the owner was already an adult, what is the halakha ; indeed, would the halakha be that the bailee pays? If so, rather than teaching: The claim is valid only when the giving of the deposit and the claim are equal, let the baraita teach: The claim is valid only when the consumption of the deposit and the claim are equal, which would be a more precise ruling. Rabbi Ḥiyya bar Abba said to him: Emend the baraita and teach: The claim is valid only when the consumption of the deposit and the claim are equal.

Segment 20

רַב אָשֵׁי אָמַר: לָא דָּמֵי; אֲבֵידָה – קָא אָתְיָא מִכֹּחַ בֶּן דַּעַת, וְהָא – לָא אָתְיָא מִכֹּחַ בֶּן דַּעַת.

Rav Ashi said a different answer to Rabbi Abba bar Memel’s objection: The two cases are not comparable, so an objection to Rabbi Ḥiyya bar Abba’s statement concerning a lost item cannot be derived from the case of a minor giving a deposit, because the lost item came into the possession of the finder by the power of one who is mentally competent, as the one who lost it is presumed to be an adult, though he did not personally give it to the finder; but this deposit given by a minor did not come into his possession by the power of one who is mentally competent, as from a halakhic perspective, a minor is not considered mentally competent. Therefore, he has no grounds for a claim.

Segment 21

וְאָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: הַטּוֹעֵן טַעֲנַת גַּנָּב בְּפִקָּדוֹן, אֵינוֹ חַיָּיב עַד שֶׁיִּכְפּוֹר בְּמִקְצָת וְיוֹדֶה בְּמִקְצָת. מַאי טַעְמָא? דְּאָמַר קְרָא: ״כִּי הוּא זֶה״. וּפְלִיגָא דְּרַבִּי חִיָּיא בַּר יוֹסֵף – דְּאָמַר רַבִּי חִיָּיא בַּר יוֹסֵף:

§ The Gemara quotes a related ruling: And Rabbi Ḥiyya bar Abba says that Rabbi Yoḥanan says: With regard to one who falsely states the claim, with regard to a deposit, that a thief stole it, he is not obligated to take an oath, nor to pay double payment, until he denies part of the claim and admits to part of the claim. What is the reason for this? As the verse states: “About which one shall say: This is it” (Exodus 22:8), indicating an admittance of only this part, but no more. The Gemara notes: And this disagrees with the ruling of Rabbi Ḥiyya bar Yosef, as Rabbi Ḥiyya bar Yosef says:

Bava Kamma 106b

Bava Kamma 106b

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